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SENATE No. 31. 



orommonUjtaUij of iHassatljufiittts. " 



In Senate, Feb. 3, 1845. 

The Joint Special Committee, to whom was referred the 
Message of His Excellency the Governor of the 6th iilt trans- 
nitting certain documents from the State of South Carolina, 
md a letter from the Honorable Samuel Hoar, have considered 
i;he same, and ask leave to report the accompanying Resolve 
and Declaration appended to it.. 

By order, 

C. F. ADAMS. 



^ 






TREATMENT OF SAMUEL HOAR. [Feb. 



In the Year One Thousand Eight Hundred and Forty-five. 



RESOLVES 

Concerning the Treatment of Samuel Hoar by the State of 
South CaroHna. 

Resolved^ That the Declaration annexed be adopted as the 
act of the Commonwealth of Massachusetts, and that His Ex- 
cellency the Governor be hereby authorized to transmit one 
copy of the same to the President of the United States, and one 
copy to the Governor of each of the States constituting the 
United States of America, excepting only the State of South 
Carolina, with a respectful request that the same be submitted 
to the consideration of the Legislatures of the United States and 
of the Slates respectively. 

Resolved^ That His Excellency the Governor be hereby au- 
thorized to transmit to the Executive Government of the State 
of South Carolina a copy of the Declaration which has been 
addressed by Massachusetts to each of the other States of the 
Union. 






1845.] SENATE— No. 31. 



DECLARATION. 



The State of Massachusetts now addresses each of her sister 
States of the North American Federal Union, and, in the pre- 
sence of all Christian nations, of the civilized world, and of an 
omniscient, all-seeing Deity, the final judge of human action 
in States as in individuals, enters her earnest and solemn 

PROTEST 

against the hostile acts of the State of South Carolina. 

Massachusetts thus arraigns South Carolina, because, disre- 
garding the comity acknowledged by all civilized communities 
as the rule of conduct towards one another, and defying the 
express stipulations of the Constitution of the United States, a 
compact into which her citizens voluntarily entered with those 
of the other States composing the Union, she has, for a period 
of time now embracing a quarter of a century, persisted and 
still persists in executing a system of legislation, aggressive 
upon the rights of her sister States, and has refused to submit 
her action to be judged by the tribunal specified by that Con- 
stitution as the arbiter of their disputes, namely, the Supreme 
Court of the United States. 

This system of legislation, under the color of police laws, 
has been carried on by South Carolina until it has assumed all 
of the following principles : 

First. That the State has a right to send officers on board 
of the ships of other States touching at her ports, with the de- 
sign of distinguishing between the persons who constitute the 
crew, and of seizing at her sole discretion, and casting into pri- 
son such as she may specify, without the necessity of alleging 
against them, the commission of any crime. 



4 TREATMENT OF SAMUEL HOAR. [Feb. 

Second. That the State has a right to inflict corporal pun- 
ishment, by the apphcation of the lash, to any extent, upon the 
persons of citizens of Massachusetts, solely because they may 
be found a second time in the ships of their own State touching 
at her port. 

Third. That the State has a right to sell into absolute sla- 
very for life, human beings, unoffending persons, freemen of 
Massachusetts, entitled by her Constitution and laws to the 
fullest security of life, liberty and property, as well when fol- 
lowing a lawful calling on board her ships as when at home. 

Fourth. That the State has a right to expel from her terri- 
tory, citizens of Massachusetts going to it for the sole purpose 
of seeking the peaceful mode of redress for her citizens which 
the Constitution of the United States affords, an opportunity to 
appeal to the courts of the Union. 

Fifth, That the State has a right to punish by fine and im- 
prisonment any citizen coming from any other State, with the 
intention to question the validity of laws which assume the 
right to imprison, to whip and to sell the freemen of the latter, 
without hearing, trial or the allegation of any crime. 

In former times as between independent States, the assump- 
tion of powers far more circumscribed than these, would have 
been met by the resort to arms. But Massachusetts is too well 
aware of her obligations, to endeavor to seek redress in any 
manner which the Constitution of the United States and the 
advancing spirit of Christian civilization would alike condemn. 
She will not give loose to a spirit of retaliation which the offence 
might well justify, nor even indulge in language of recrimina- 
tion that would ill become the disposition she seeks to cultivate 
towards her sister States. It may be that, in the contests which 
mark the progress of the nineteenth century, she will differ from 
many of them in her mode of adhering to principles of vital 
importance to human liberty, but she will do so calmly. And 
though steadfast in the maintenance of her own rights, she will 
not seek needlessly to attack theirs. This earnest appeal to 
them shall not be soiled with a single expression which would 
ever cause a just regret to the remotest descendants of her citi- 



1845.] SENATE— lVo. 31. 5 

zens, It shall claim for them the undisturbed enjoyment of all 
the privileges which their ancestors braved every danger to se- 
cure. But ihat claim shall be made to rest only upon those 
immutable principles of justice, of freedom and of right, which, 
however smothered for a time by the force of local interests or 
sectional passions, must in the end extort the assent of the most 
reluctant heart. 

Five and twenty years have elapsed since the date of the first 
hostile act now complained of; a sufficient time for reason to 
resume its sway, had the policy been the oflspring merely of 
momentary alarm and inconsiderate haste. Instead, however, 
of relaxing, the subsequent legislation has varied only in its 
severity. It must now be assumed as beyond a doubt, that 
South Carolina will not surrender her claim of the right to 
board the ships of other States, in order to pick out from her 
crews whom slie thinks fit to suspect of evil intention, and to 
seize and imprison, perhaps to whip, and perhaps to sell into 
slavery for life these persons, if she so incline, without being 
under the necessity of alleging against them any crime beyond 
that of their appearance in those ships at her ports. 

In the long list of ofiences charged upon the mother country, 
as justifying the separation of the Colonies, there is not found 
in the Declaration of Independence one, the arbitrary character 
of which approaches that of the acts committed upon citizens 
of friendly States by South Carolina under this claim. For 
they make of no account whatsoever the vital principle which 
animated that, as it must every just struggle of a people for 
freedom, the principle that no man should be subjected to the 
loss of life, of liberty or of property, without the allegation of 
some oftence committed, and without being heard in his de- 
fence. When the representatives of the Colonies, in 1774, ad- 
dressed their first remonstrance to the people of Great Britain, 
they only declared that " they held it essential to English lib- 
erty, that no man be condemned unheard, or punished for sup- 
posed ofiences, without having an opportunity of making his 
defence." The idea that he could be condemned unheard, 
without the necessity even of supposing an oftence, never oc- 
curred to them. That was a position which the most extrava- 



6 TREATMENT OF SAMUEL HOAR. [Feb. 

gant asserter of the British prerogative would not, in the face 
of her history, of Magna Charta, of the petition of right, of the 
execution of Charles, of the bill of rights and the acts of set- 
tlement, have conceived it possible to assume. 

Had there been no peculiar ties of sympathy, long since cre- 
ated, to bind South Carolina and Massachusetts together, — had 
they been merely upon the footing of civilized nations at peace 
with each other, — these acts of the former, and the principles 
which they involve, could have been regarded in no other light 
than as intended to provoke hostility. And perseverance in 
them, after remonstrance on the part of the latter State, would 
justify retaliation and even war. The recognised law of na- 
tions is clear, that an injury either done or threatened to the 
perfect rights of a nation, or of any its members, and suscepti- 
ble of no other redress, is a just cause of war. The only jus- 
tification for her conduct that has ever been attempted by South 
Carolina, is the plea of necessity of police regulations to her 
own safety. But this plea, as opposed to the rights of other 
nations liable to be affected thereby, however potent, cannot 
be carried to the extent to which that State would push it. 
Massachusetts denies her right under any such pretence to 
arrogate to herself a right of jurisdiction over the ships of Mas- 
sachusetts, or condemning her citizens without appeal, simply 
because they are following an innocent and honest occupation 
on board of those ships whilst lying in her harbors. She de- 
nies her right under such pretence to violate, at her sole will 
and pleasure, the perfect rights of other nations, or of any their 
members. South Carolina may, if she think fit to press her 
plea, deprive the citizens of foreign States of certain privileges 
upon her soil which comity would grant, but she surely cannot 
justly claim by it to board their ships — to make distinctions 
among the crews of those ships — to compel whom she pleases 
to enter her territory against their will — to imprison them in 
her jails — to force the commanders to give bonds to redeem 
them, and to pay the expenses attending their involuntary de- 
tention — to lash them, and to sell them as slaves for life. These 
acts are acts of war. They have no justification in the recog- 
nised intercourse of Christian or civilized nations intending to 



1845.] SENATE— No. 31. 7 

remain at peace. They lead to the last appeal between sove- 
reigns, and to nothing else. For it is the indispensable duty 
of the nation thus attacked, in the persons of her citizens, to 
protect ihem in every manner possible in the enjoyment of their 
rights, both of persons and property, she herself being the only 
judge whether it be advisable or not to resort to force. This is 
a fundamental principle of every social compact. In accord- 
ance with this established law of government, Great Britain, 
which seldom neglects to interpose her arm for the security 
even of the humblest of her citizens in foreign countries, felt 
herself called upon to enter a formal complaint against the ex- 
tension of the operation of these same acts of South Carolina 
over her subjects visiting the ports of Charleston in her ships. 
She remonstrated, not with that State, but with the government 
of the United States. She appealed to it to maintain the faith 
of its treaties. William Wirt, a citizen of Virginia, and after- 
wards of Maryland, then occupying the responsible post of 
Attorney General of the United States, and entitled to high 
consideration as a legal authority down to this day, pronounced 
the complaint well-founded, and the acts complained of an in- 
fraction of " the Constitution, treaties and laws of the United 
States, and incompatible with the rights of all nations in amity 
with the United States." South Carolina yielded ; but. as if 
determined to show to the world that she conceded only to the 
danger of an impending rupture, and not to the conviction of 
her error, she only suspended the operation of her acts upon the 
citizens of a powerful foreign nation ; whilst she persevered in 
executing them upon her neighbors and friends, whom it 
seemed less hazardous to wrong. And thus it is, that more 
than once, in the harbor of Charleston, citizens of Massachu- 
setts have found, on board of the ships of a foreign State, a 
refuge from oppression by their fellow countrymen, which their 
own ought, but was unable to secure to them. 

But superinduced upon these general obligations on all 
nations to respect the perfect rights of each other, there are 
special ones which South Carolina, by the voluntary ratifica- 
tion of the Constitution of the United States as a common form 
of government, assumed towards the citizens of the other States, 



8 TREATMENT OF SAMUEL HOAR. [Feb. 

and among them to those of Massachusetts. Whatever may be 
the character of that compact, whether between the States or 
the people of the States, it should be a law equally imperative 
in its character upon all the parties to it. Massachusetts is pre- 
pared to abide by it as well in those portions which are onerous 
to her as in those from which she benefits. But when doing 
this, she expects, nay, she demands, the same Vule of action 
from her sister States. She will never acknowledge the right 
of any one or more of them, under any plea whatsoever, to set 
themselves above the obligation of conforming to its terms, 
particularly in those cases which most nearly touch the privil- 
eges secured to her own citizens. It is one of the provisions of 
the Constitution, that " the citizens of each State shall be en- 
titled to all privileges and immunities of citizens in the several 
States." Massachusetts affirms that this provision has been 
set aside by the acts of South Carolina. She avers that her 
citizens are not allowed any privileges and immunities, who 
are seized, cast into prison, lashed or sold as slaves for life, 
without a shadow of crime defined against them on her own 
statute book. She denies that any thing can be called a privil- 
ege or immunity which is attended with so glaring a violation 
of the right of personal liberty. She now solemnly and before 
the face of Heaven charges upon South Carolina a deliberate 
and palpable breach of that condition of the common compact, 
and she appeals to the sense of justice and of right, both of 
living and future generations to answer, that the charge is 

TRUE. 

But had South Carolina any justification to make of her acts 
beyond the tyrant's plea ; did she join issue with Massachu- 
setts upon the question, who are the citizens of each State en- 
titled to enjoy the privileges and immunities referred to in the 
Constitution ; did she deny that the persons whom she claims 
the right to seize, to imprison, to whip or to sell, without ques- 
tion, although admitted to belong to Massachusetts ships, are 
Massachusetts citizens, there is provided for her under the com- 
pact to which she made herself a party, a grave tribunal, to 
which, in the last resort, every controversy between the States 
may be brought to a peaceful end. The Constitution assigns 



1845.] SENATE— No. 31. 9 

to the judicial power of the United States the province of decid- 
ing controversies between two or more States, between a State 
and citizens of another State, or between citizens of different 
States. Massachusetts has taken every measure possible to 
induce South CaroHna to submit this question of the validity 
of these laws, so far as they apply to her citizens, to that power. 
The great object expected to be gained by the employment of 
a special agent was, that the necessary measures might be per- 
fected within the territory of South Carolina, where only they 
could be taken, to procure an ultimate decision. If Massachu- 
setts be wrong in her view of her rights, she has no reason 
from the constitution of that final tribunal to expect a scruple 
of partiality in her favor to weigh in arrest of judgment. But 
whether wrong or not, she has offered, and does offer, to abide 
by the award, whatever it may be. And she insists upon her 
right, under the obligations of the common compact, to demand 
the assent of South Carolina to her proposal. It is one of the 
most solemn considerations attending this controversy, that that 
State has been willing to intrench herself behind every techni- 
cal obstacle to such a decision ; that her citizens, when called 
professionally to take the ordinary steps to forward it in the 
federal courts, have all declined so to do ; that she has now 
finally prohibited them from accepting any similar trust; and 
that she has thought proper to threaten with personal violence 
in order to deter from acting, an individual sent from Massachu- 
setts to do what her own citizens have refused to do. The 
evidence necessary to prove her intent, is then at last complete. 
It must be assumed that South Carolina now deliberately refu- 
ses to recognize the authority of the federal tribunal. She sets 
herself above the restrictions of the (Constitution which she 
agreed to sustain, and perseveres in the execution of her will 
at whatever cost. If it be once assumed that the government 
of the United States has not either power or will to interpose, 
it becomes a giave question to consider, whether the citizens of 
Massachusetts can much longer remain bound by their obliga- 
tions to South Carolina under the compact. Such is the legitimate 
consequence of the policy she has thought it proper to pursue. 
Massachusetts presents this view to each of the States, without 



10 TREATMENT OF SAMUEL HOAR. [Feb. 

seeking to encourage any use of the unfortunate liberty which 
it might be construed to give. 

It is true that once an attempt was made in the Congress of 
the United States to sustain by an elaborate report upon strictly 
constitutional ground, the position which South Carolina has 
assumed. And inasmuch as that State, though refusing to sub- 
mit the argument upon which it rests to the judgment of the Fed- 
eral Court, has taken the same general basis for the resolutions 
passed by her Legislature, it acquires a degree of importance 
which may bring it within the notice of Massachusetts. The 
argument is, that by the clause of the Constitution granting to 
" the citizens of each State all privileges and immunities of citi- 
zens in the several States" — South Carolina is bound to extend 
to them only the same degree of privilege and immunity that 
she does to her own population at home " under the like cir- 
cumstances." Hence it must follow, that if she retain to her- 
self the right to seize, imprison, lash and sell as slaves for life, 
without charging the commission of any crime or giving them 
any hearing, any part of her freemen, she may constitutionally 
claim to exercise the same power over the freemen of other 
States ''under the like circumstances." With all the inhuman- 
ity that ordinarily attends a code of slave laws, there will 
scarcely be found in them any authority for such a proposition 
as this, and if there were, its publication in the face of the 
Christian world would at once be its condemnation. No. Free 
negroes are safe from personal harm even in South Carolina, so 
long as they obey the laws and commit no ofience. But the 
free negroes of Massachusetts are liable, whenever they come 
into the harbors of Carolina in the vessels of Massachusetts, to 
be seized, cast into prison, whipped and sold for slaves, not- 
withstanding that they may manifest no disposition whatever 
to touch her soil, or to commit the smallest act likely to draw 
down upon them a suspicion. Are then the cases parallel even 
upon the reasoning presented, and does South Carolina, by her 
own construction of the Constitution, extend to the citizens of 
each State all privileges and immunities which she grants to 
her own " under the like circumstances" ? 



1845.] SENATE— No. 31. 11 

But the construction admitted for the sake of the argument, 
when analyzed, is proved fallacious to the last degree. It has 
been made to rest upon a definition of citizenship nowhere found 
in the numerous works upon government which have usually 
been recognized as authority during the last century, but drawn 
from a judicial opinion of a court in the State of Kentucky. It 
is due to ihe present question to quote it entire as it stands in 
the original defence. 

'' The term citizen is derived from the Latin word civis, and 
in its primary sense signifies one who is vested with the free- 
dom and privileges of a city. If we go back to Rome, whence 
the term citizen had its origin ; we shall find in the illustrious 
period of her republic, that citizens were the highest class of 
subjects to whom the jus civitatis belonged, and that the jus 
civitatis conferred upon those who were in possession of it all 
rights and privileges, civil, political, and religious. When the 
term came to be applied to the inhabitants of a State, it neces- 
sarily carried with it, the same signification, with reference to 
the privileges of a city; and it is in this sense that the term cit- 
izen is believed to be generally, if not universally, understood 
in the United States. This, indeed, evidently appears to be 
the sense in which the term is used in the clause of the Consti- 
tution which is under consideration ; for the terms " privileges 
and immunities " which are expressive of the object intended 
to be secured to the citizens of each State in every other, plainly 
import, according to the best usages of our language, some- 
thing more than those ordinary rights of personal security and 
property, which, by the courtesy of all civilized nations, are ex- 
tended to the citizens or subjects of other countries while they 
reside among them. No one can, therefore, in the correct sense 
of the term, be a citizen of the State who is not entitled, upon 
the terms prescribed by the institutions of the State, to all the 
rights and privileges conferred by those institutions upon the 
highest class of society," &c. 

Upon a similar idea of citizenship, South Carolina rests the 
declaration made by her government on the sixth of December, 
1844, in these words : 



12 TREATMENT OF SAMUEL HOAR. [Feb. 

" Resolved, That free negroes and persons of color are not 
citizens of the United States within the meaning of the Consti- 
tution, which confers upon the citizens of one State the privi- 
leges and immunities of citizens in tiie several States." 

Massachusetts takes issue before the world with South Caro- 
lina upon this position. She maintains the definition to be 
false, the conclusion from it to be dangerous, and the resolve 
which rests upon it to be an essential perversion of the terms of 
the Constitution which it purports to quote. 

Had the Kentucky court turned to the preamble of that Con- 
stitution under which it acted, in these words : "We, the rep- 
resentatives of the people of the State of Kentucky, in conven- 
tion assembled to secure to all the citizens thereof, the enjoy- 
ment of the right of life, liberty and property, and of pursuing 
happiness, do ordain this Constitution," &c. — would it then have 
ventured to maintain, in the face of the republican people of 
that State, that they meant to secure the advantages spoken of 
only to " the highest class of their society " 7 

Did it mean to infer that because there may be free persons 
in a State who do not enjoy all the privileges and immunities 
conferred upon the highest class of her society, they are not 
citizens, and are therefore entitled to claim none at all? Hence, 
that the State in which they live, may at pleasure seize, im- 
prison, order to be beaten with a lash, or sold into slavery for 
life, all such free persons, without the necessity of alleging 
against them the commission of any crime ? 

The court of Kentucky obviously meant to justify no such 
inference. It construes the terms " privileges and immunities " 
in the Constitution •' to import something 7no7'e than ordinary 
rights of personal security and property which the courtesy of 
all civilized nations extends to the subjects or citizens of other 
States." But if this be at once admitted, how comes it that Soutli 
Carolina can draw from it any justification for the depriving 
whom she may think fit from other States, even of those " or- 
dinary rights which the courtesy of all civilized nations would 
extend to them"? The definition seems to presume some- 
thing more to be secured than the absolute rights of strangers, 



1845. J SENATE— No, 31. 13 

" subjects or citizens of other States." The conclusion drawn 
from it, not merely gives them something less, but utterly de- 
nies them any right whatever. The result of the whole would 
seem to be, that a portion of the people of Massachusetts or 
the other States of the Union, instead of gaining any new '-priv- 
ileges and immunities'' by the adoption of the federal Consti- 
tution, must have been actually deprived by it of those which 
they would have had without it. 

But Massachusetts has learned the doctrines of liberty in no 
such schools as these. She claims to be a republic, and not 
an aristocracy. Her Constitution, formed in the midst of the 
fiery trial of the Revolution, breathes the spirit of the fathers of 
her freedom. It declares "all men born free and equal, and 
having certain natural, essential and unalienable rights."' The 
seventh article of her Declaration of principles affirms, "gov- 
ernment to be instituted for the common good ; for the protec- 
tion, safety, prosperity and happiness of the people, and not for 
the profit, honor, or private interest of any one man, family, 
or any one class of men." The tenth says that '^ each individ- 
ual of the society has a right to be protected by it, in the enjoy- 
ment of his life, liberty and property, according to the standing 
laws. He is obliged, consequently, to contribute his share to 
the expense of this protection ; to give his personal service, or 
an equivalent, when necessary." There is not a word in it 
about " the highest class of society." Citizenship, according 
to it, embraces all the members of the social system, who, while 
contributing to its burdens, earn the right to its protection. The 
duty of the State is imperative to shield against wrong the 
humblest of its members not less than the proudest. So far as 
her Constitution is concerned, she recognizes no distinction of 
rights between the two. 

It is not then as " citizens of the United States," as the State 
of South Carolina pretends, but because they are citizens of 
Massachusetts, that this State claims the guarantee of the Con- 
stitution of the United States to protect her people against 
wrong in the harbors of Carolina. That instrument explicitly 
enough says, that " the citizens of each Siaie," not the citizens 
of the United States, for there are no such persons, excepting 



14 TREATMENT OF SAMUEL HOAR. [Feb. 

as they are primarily citizens of some smaller body politic, 
"shall be entitled to all privileges and immunities," not to tlte 
privileges, as the resolve of South Carolina states it, "of citi- 
zens in tlie several States." The citizens of Massachusetts are 
entitled in South Carolina to all the privileges whicli citizens of 
South Carolina themselves enjoy. What the precise extent of 
those privileges are, it is unnecessary here to inquire, so long as 
it must be conceded that they cover immunity from gross 
wrongs. So long as Soutli Carolina arrogates the right of 
seizing, imprisoning, whipping and selling as slaves for life, 
any member of the social system of Massachusetts without 
cause assigned, hearing or trial, just so long is that immunity 
referred to in the Constitution wholly set at nought. Neither 
is it material to the question what the social position of the 
oppressed persons may be in Massachusetts. They do unques- 
tionably every year exercise the privilege of voting conceded to 
all citizens ; but if they did not enjoy it, they would be in no 
worse position than are all women or children under twenty- 
one years of age. On this or any similar score, it is not within 
the competency of South Carolina to make arbitrary distinc- 
tions among her people. It is enough that they are human 
beings, endowed by the Deity with " certain natural, essential, 
unalienable rights, among which may be reckoned the right of 
enjoying and defending their lives and liberties." Massachu- 
setts contracted for their security under the guarantee of the 
Constitution of the United States, and South Carolina has 
broken the contract by setting it aside. 

'J'he principle which South Carolina has assumed goes to 
this length, that she denies the right of other States to decide 
for themselves who are or are not their own citizens. She 
claims the power to distinguish between them, to exclude from 
the title whom she sees fit, and to take from these at will all 
rights, privileges and immunities excepting perhaps the right to 
life. If this construction of the clause in the Constitution be for 
a moment conceded to be correct, then has every State in the 
Union the same right to specify and limit the class of persons in 
other States whom she will recognise as entitled to privileges and 
immunities of citizens within her borders. Massachusetts, for 



1845.] SENATE— No. 31. 15 

example, might with as much reason decide that none but the 
free negro of South CaroHna should be considered by her as a 
citizen of that State entitled to the privileges and immunities 
of citizens, within her limits, as South Carolina does, that none 
but the white man of Massachusetts should be so regarded 
within her's. The power and the right of one State to make 
such a decision is co-extensive with that of the other to make an 
opposite one. Both make the guarantee of the Federal Consti- 
tution void and of no effect. Both vest the power of making 
vexatious distinctions and preferences in the very hands out of 
which that instrument obviously intended for the sake of the 
genera] peace to take it. Massachusetts has not on her part 
ever claimed any similar right. She submits to be bound by 
the paramount obligation of the common compact, but at the 
same time she requires that other States in the same position 
will equally submit, and she demands that the State which de- 
nies that obligation in points onerous to herself should cease to 
urge the performance by the rest of those conditions by which 
she only is to be benefited. 

But not content with a simple refusal to acknowledge -the 
validity of any rule of reciprocity between States, whether that 
rule be laid down by the general law of nations, or by the 
special conditions of a written contract, South Carolina has 
thought it becoming her character as a civilized commvmity to 
vent lier indignation upon one respectable citizen of Massachu- 
setts who ventured to undertake the simple duty of entering 
her territory for the purpose of forwarding the necessary legal 
measures to obtain an adjudication of this controversy in 
the Federal Courts. She has chosen to order his expulsion 
from it and lo accompany her order with a wilful misrep- 
resentation of the character in which he came. She has chosen 
to affix penalties to the attempted performance of any similar 
trust hereafter. These are facts which the Laws and recorded 
Resolutions of lier Legislature place beyond the reach of denial. 
Massachusetts will notice them in this connexion only that 
the sketch of the principles and policy of that State may be 
made more complete. One purpose for which Mr. Hoar was 
sent to South Carolina was to test the disposition of that State 



16 TREATMENT OF SAMUEL HOAR. [Feb. 

to submit to the conditions of the Constitution of the United 
gtates — and it has been fully answered. In other respects the 
action that has been had upon the agent is of no material con- 
sequence. The dignity of Massachusetts can never be tarnish- 
ed by a simple and rigid adherence to the line of her positive 
duties. Neither could it be heightened by retorting acts or 
words of impotent violence for an equally impotent insult. 

There remains, however, one more duty to be performed. 
However coniSdent Massachusetts may be that her preceding 
course has been in every respect justifiable in this controversy, 
yet a decent respect for the opinions of mankind would seem 
to require a brief recapitulation of her several acts, in order 
that a full and clear judgment may be formed as to the ques- 
tion, which of the two governments most nearly follows the 
line that Christian principles and the courtesy of modern civiliz- 
ation would prescribe. 

If there be any force in the concurring sentiments of all au- 
thorities upon the nature and end of government, there is no 
principle more clear than this, that it is the indispensable duty of 
a State to do every thing wit'iin its power (hat may protect its 
members against wrong. This is a fundamental principle of 
the social compact. Massachusetts could never disregard it with 
impunity to her reputation so long as a path of living light shall 
remain marked out for her in the first part of her own Consti- 
tution. Founded upon the basis of equal rights among the 
members of her society it was not for her to be outdone in 
earnestne.«s for their defence against oppression by the govern- 
miut of a monarchy which acknowledges no such equality. 
Yet Great Britain had remonstrated against the oppressive 
character of the laws of South Carolina upon her subjects long 
before Massachusetts did, and, what is more, she obtained a 
susj)ension of their operation upon them, which Massachusetts 
has failed to do. What the cause of the difference in the treat- 
ment of the two States could have been is difficult at this time 
to point out. It may have been owing to the conciliatory tem- 
per of the latter which induced her to bear for a time in silence 
rather than to hazard a dispute with a sister State. The citi- 
zens of the State whose rights were attacked early remonstra- 



845.] SENATE— No. 31. 17 

ted, and were only deterred from pursuing the question in the 
Federal Courts by the remonstrances of a .Tudge of those Courts, 
who assured them that the evil coinplaiiicd of was only tempo- 
rary in its character and would be remedied by Ihc voluntary 
act of the State Courts themselves. Such was not, however, the 
result. Those Courts, when appealed to, sustained the validity 
of the laws, and technical obstacles defeated a decision by that 
of the United States. But William Johnson, himself, a native 
and citizen of South Carolina, and then the Judge of the Su- 
preme Court of the Union already alluded to, did not hesitate 
upon the general merits of the question, to pronounce the deci- 
ded opinion that the acts complained of " trampled on the Con- 
stitution," and " implied a direct attack upon the sovereignty 
of the United States." 

So long as sentiments like these could be heard and tolerated 
in the heart of Carolina i^tself, as expressed by distinguished 
jurists, there was reason to hope that these acts, originally the 
offspring of fear, whose ears are always deaf to the calls of hu- 
manity or justice, would pass away with the memory of the 
events that occasioned them. But fourteen years elapsed. 
The Judge, who had been so candid in expressing his convic- 
tions, was removed from the sphere of JUiman action, and left 
no echo of his voice behind him. And the apparent success of 
Carolina in maintaining her policy, tempted many of her sister 
Stales to follow her example. A few of them, whilst adopting 
her system, were careful to avoid her errors. Others were less 
regardful. But it is of the States of South Carolina and Loui- 
siana that Massachusetts has the most cause to complain, be- 
cause it is to the ports of Charleston and New Orleans that her 
ships and citizens most resort. Yet, notwithstanding tliat ag- 
gravated cases of wrong, endured by them, were occurring every 
year, it was not until 1836 that petitions were addressed to the 
Legislature invoking the interposition of the State. Even then 
the great anxiety to avoid any unpleasant collision with her 
sister States, led her to postpone action upon them for three 
years more. But her duty was not the less distinctly laid down 
before her, and seeing that the perseverance of South Carolina 
and other States in their aggressive policy was no longer to be 
3 



18 TREATMENT OF SAMUEL HOAR. [Feb. 

doubted, she directed the following remonstrance to be recorded 
upon her statute book : 

"Resolves concerning certain laws of other States, which affect 
the rights of citizens of Massachusetts. 

Whereas, under the laws of several States in this Union, cit- 
izens of this Commonwealth, visiting those States for purposes 
of business, or driven thither by misfortune, often have been, 
and continue to be, though guiltless of crime, cast into prison, 
subjected to onerous fines, and in many instances sold into 
slavery ; therefore 

Resolved, That it is a paramount duty of Massachusetts, to 
protect her citizens in the enjoyment and exercise of all the 
rights to which, by virtue of their citizenship, they are enti- 
tled. * 

Resolved, That this Legislature hereby protests against the 
laws in question^ as invading the sacred rights of citizens of 
this Commonwealth, as contrary to the Constitution of the 
United States, and in utter derogation of that great principle of 
the common law, which presumes every person to be innocent 
until proved guilty. 

Resolved, That His Excellency the Governor, whenever it 
shall be made to appear, to his satisfaction, that a citizen of this 
Commonwealth is imprisoned in another of the United States, 
on suspicion of being a slave, is hereby authorized to employ a 
suitable person, whose duty it shall be to procure the requisite 
proofs in the case, to proceed, if necessary in the opinion of the 
Governor, to the State where the individual is so imprisoned, to 
lay the matter before the proper authorities, and having obtained 
the release of the said individual, to bring or cause him to be 
brought to a place of safety; and His Excellency is hereby 
empowered to draw his warrant on the treasury of this Com- 
monwealth, to defray the expense thereof 

Resolved, That His Excellency the Governor be requested to 
transmit a copy of these resolves to the Executives of the seve- 
ral States of this Union, and to each of our senators and rep- 



1845.] SENATE— No. 31. 19 

resentatives in the Twenty-Sixth Congress of the United 
States." 

Such was the first declaration of Massachusetts upon this 
subject. It recognized its own duty^ — it calmly and mildly 
remonstrated against the acts of other States, so far, and so far 
only, as they injuriously affected the undeniable rights of its 
own citizens; it authorized measures to be taken to relieve the 
sufferers. Further than this it did not go. It denounced no 
one, it insulted no one, it threatened none. Respectful in lan- 
guage, and strictly defensiv^e in its tone, it rested upon the hope 
that something would yet be done by the voluntary act of the 
offending States to remedy the grievances complained of And 
to the end that they might be informed, it directed a transmis- 
sion of the remonstrance to the other States. 

Three years more were suffered to pass, — a period of time 
sufficient to test the effect of this first respectful remonstrance. 
No measure of relaxation was proposed in any quarter. The 
resolves remained utterly unheeded. In the mean time, how- 
ever, citizens of Massachusetts continued to suffer as before. 
And it became manifest that new measures were absolutely 
necessary to prove that the State was not disposed to surrender 
without a struggle a solemn and fundamental principle of her 
political faith. The only course that remained open was to 
endeavor to bring the question before the only tribunal compe- 
tent to decide it, the Supreme Court of the United States. In 
the confident expectation that this might be readily accom- 
plished by simply assuming responsibility for the expense of 
the suit, the Legislature, in the year 1842, adopted the subjoined 
resolves. 

" Resolves relating to the imprisonment of citizens of this 
Commonwealth in other States. 

Resolved, That the imprisonment of any citizen of Massachu- 
setts by the authority of any other State in the Union, without 
the allegation of the commission of any crime, and solely on 
acconnt of his color, is a gross violation of the federal Constitu- 
tion as well as the principles of rational liberty. 



20 TREATMENT OF SAMUEL HOAR. [Feb. 

Resolved, That whenever His Excellency the Governor shall 
be applied to in behalf of any citizen imprisoned as aforesaid, 
and it shall appear to him, by a representation under oath, 
made by any creditable person, that such citizen so imprisoned 
is held in prison on account of his color only, it shall be the 
duty of the Governor forthwith to take all suitable and proper 
measures to cause such citizen to be discharged from his im- 
prisonment, and the legality of such imprisonment to be tried 
and determined by the courts of the United States, and His 
Excellency the Governor may draw his warrant upon the trea- 
sury of the Commonwealth to defray any reasonable and neces- 
sary expenses thereby incurred. 

Resolved, That His Excellency the Governor be requested to 
transmit a copy of these resolves to the Governors of the several 
States to be communicated to the Legislatures thereof." 

The hopes excited by the adoption of this measure, that 
the question of the validity of these Laws might be carried up 
to the federal court for adjudication proved vain, for the reason 
that the sufferers under them could not hope for any aid upon 
the spot to make themselves heard in Massachusetts through 
the bars of their prison-house. Those of them who were for- 
tunate enough to be attached to ships, preferred to follow them 
rather than to run the risk of being detained to await the result 
of a difficult suit, without any protection from the laws of the 
State in which they were, and those who were not so fortunate 
were scarcely likely to be ever heard of again as freemen, to 
make any complaint whatsoever. It soon became clear that an- 
other effort was necessary of a different kind. And still obeying 
the clear obligations of her Constitution, Massachusetts once 
more went forward in the cause of the defence of her citizens. 
Upon the petition of a large number of most respectable citi- 
zens, that a new attempt might be made having for its object 
the employment of high professional assistance in the ports of 
Charleston and New Orleans, in behalf of the sufferers, and for 
the sake of promoting a decision in the Courts of the United 
States, the following resolves were adopted in 1843. 



1845.] SENATE— No. 31. 21 

" Resolves relating to the imprisonment of citizens of this 
Commonwealth in other States, 

Resolved^ That the perseverance of many of the States in the 
Union against all remonstrance on the part of Massachusetts, 
in seizing and imprisoning her citizens without the allegation 
of any crime, is calculated to weaken the confidence which she 
has in the good disposition of those States to maintain their 
engagement to the Constitution of the United States inviolate. 

Resolved, That His Excellency the Governor, with the advice 
and consent of the Council, be authorized to employ an agent 
in the ports of Charleston, in South Carolina, and New Orleans, 
in Louisiana, for a term of time not to exceed one year, for the 
purpose of collecting and transmitting accurate information 
respecting the number and the names of citizens of Massachu- 
setts who have heretofore been, or may be during the period of 
his engagement, imprisoned without the allegation of any crime. 
The said agent shall also be enabled to bring and prosecute, 
with the aid of counsel, one or more suits in behalf of any citi- 
zens that may be so imprisoned at the expense of Massachusetts, 
for the purpose of having the legality of such imprisonment 
tried and determined upon in the Supreme Court of the United 
States. 

Resolved, That His Excellency the Governor be authorized 
to draw his warrant to cover any necessary expenses incurred 
in carrying into effect the aforegoing resolves, after the same 
shall have been audited and allowed by the council, to be paid 
out of the public treasury." 

The object of these resolutions was two-fold. First, to gather 
some facts by which a judgment might be formed how extensive 
the practical evil, so far as it affected citizens of Massachusetts, 
actually was. Secondly, to secure the long cherished purpose 
of trying the question of the validity of these laws before the 
constitutional tribunal. In order to carry out the intent of the 
State, the Governor, for the time being, communicated with 
gentlemen of professional distinction, residmg in the specified 
ports, and solicited them to assume the trusts thus conferred. 



22 TREATMENT OF SAMUEL HOAR. [Feb. 

They, without exception, declined to act. It became evident 
that, so far as citizens were concerned, who were under the in- 
fluence of pubhc opinion in their respective States, there could 
be no hope of cooperation. But up to this time the State had 
interposed no direct obstacle to the execution of the design of 
Massachusetts, nor had it declared its determination to resist it. 
One more opening then remained which might lead to an ami- 
cable result. The duty of Massachusetts still continued im- 
perative to leave no act undone which could yield a reasonable 
hope of protection to her people. It was, therefore, determined 
that a citizen of Massachusetts should be sent at once to take 
the necessary measures to promote an amicable appeal of the 
controversy to the highest tribunal of the Union, and thus to test 
the disposition of South Carolina to continue bound by the terms 
of the Constitution of the United States. This was done by 
one further and last act of legislation. In 1844 a new resolve 
was passed in these words : 

" Resolve concerning the imprisonment of citizens of this 
Commonwealth in other States. 

Resolved, That His Excellency the Governor, with the advice 
and consent of the Council, be hereby authorized to employ an 
agent for the port of Charleston, in South Carolina, and an agent 
for the port of New Orleans, whose duty it shall be to reside 
in said port, for a term of time not exceeding one year, for the 
purposes specified in the resolves relating to this subject, passed 
on the twenty-fourth of March, in the year one thousand eight 
hundred and forty-three. And that His Excellency the Gov- 
ernor be hereby authorized to draw his warrant to cover any 
necessary expenses incurred in carrying into effect this or the 
aforementioned resolves, after the same shall have been audited 
and allowed by the Council, to be paid out of the public trea- 
sury." 

Under the authority conferred by this resolve, the Governor 
of the Commonwealth appointed Samuel Hoar, a respected citi- 
zen of Massachusetts, the agent for the port of Charleston, to 



1845.] SENATE— No. 31. 23 

perform the duty specifically assigned him and no more. That 
gentleman repaired to Charleston, endeavored to commence 
upon his task, and simply because he attempted so to do, was 
driven by threats of personal violence of a mob from the terri- 
tory of South Carolina. And the Legislature of that State 
subsequently sanctioned the act of the people, by recording on 
her statute book an order for the expulsion, as a dangerous 
emissary of sedition, of this single, inoffensive, unarmed man. 
And the same Legislature has passed a law making it a highly 
penal offence in any person, whether citizen or stranger, ever 
to attempt the like again. 

The pacific object of Massachusetts was not attained by this 
result, it is true. But the failure was absolutely necessary to 
be shown to the world before her duly was entirely fulfilled. 
It is now clear, beyond the possibility of contradictiou, that 
South Carolina denies the authority of the Constitution of the 
United States, annuls her obligations under it towards one of 
her sister States, and refuses to abide even by the rules of com- 
ity that govern the pacific intercourse of civilized communities. 

And now, upon a review of all the proceedings of Massachu- 
setts, she challenges the world to show that she has done any 
act in connexion with this subject which it was not her indis- 
pensable duty to her citizens to do for their protection, or which 
any State has a just right to complain of her for doing. Neith- 
er has there been a word placed upon her statute book which 
she has occasion to regret. Her remonstrance has been grave, 
respectful, reasonable. Her measures have been moderate, 
strictly lawful, conciliatory, in a spirit of truth and peace. 
Questions like this must go into the history of the age — they 
must be finally tried by a standard which the passions of a 
moment, however potent, will never reach. Let posterity de- 
cide whether South Carolina will be entitled, with any justice, 
to say thus much. 

There is, however, above and beyond all the considerations 
heretofore presented, one to which Massachusetts now earnest- 
ly invokes the attention of her sister States. The compact 
formed between them all by the federal Constitution, is the liv- 
ing and shining testimony of the nineteenth century to the 



24 TREATMENT OF SAMUEL HOAR. [Feb. 

truth of the theory of liberty with law. She adjures them not 
to favor any course of action which must ultimately show it a 
solemn lie. She adjures them not to permit a case of injury to 
the rights of the people of any State to find no constitutional 
mode of redress whatsoever. If one of the States constituting 
this .Union, assume to place herself in a hostile attitude to citi- 
zens of any other ; if she refuse to listen to respectful remon- 
strance, long and patiently continued ; if she deny the author- 
ity over her of clear stipulations in the contract to which she 
voluntarily consented ; if she set herself beyond the reach of 
tribunals specially appointed to decide upon controversies be- 
tween the States ; if she treat with insult and contumely the 
bearer of a simple proposal to promote an adjudication of the 
dispute, and if she threaten with the terrors of the law all per- 
sons who seek to repeat it hereafter, then is it plain that so far 
as that State is concerned, the onerous conditions of the Consti- 
tution have no longer any binding power over her. The Con- 
gress of the United States having tolerated the doctrine in an 
official form, that " they have no means of affording relief," and 
that " the States which enacted them are alone competent to 
strike these laws from their statute book," and the arm of the 
federal judiciary having been paralyzed, in this instance, within 
the territory of South Carolina, it appears plain, if the general 
government, contrary to its obvious duty, and to the neglect of 
rights guaranteed by the Constitution, should continue to sus- 
tain the position heretofore assumed, that Massachusetts and 
every other State aggrieved, will be denied any remedy unless 
it be by throwing herself back upon the original inherent rights 
of her citizens to defend themselves. It becomes, then, a sol- 
emn question to decide, whether South Carolina, which has 
wilfully and deliberately defeated Massachusetts of a legitimate 
use of one of the provisions of the compact, designed to yield 
to the citizens of the latter that protection against wrong which 
they have a right to demand, has not voluntarily forfeited all 
title to insist upon the execution by the citizens of Massachu- 
setts of those other provisions by which she peculiarly benefits ? 
Massachusetts reserves her decision upon this point. Her ob- 
ligations to the remaining States, and her duties to herself, for- 



1845.] SENATE— No. 31. 25 

bid her risking, by any hasty step, the hazard of still greater 
evils than those which she desires to remedy. She cheerfully 
acknowledges that patience under the infliction of this gross and 
glaring wrong, is her present duty, not towards South Carolina, 
but towards the pacific States. But the same duty impels her 
in the most impressive form to record her protest against 
the commission of that wrong. She will follow no example of 
violence that may be set to her. But if the assumptions for 
the moment, successfully made by South Carolina in this in- 
stance, should be repeated, and other States, deluded by her 
example, should insist upon the execution of all the conditions 
of the Constitution advantageous to themselves, whilst they 
refuse to comply with the less favorable ones, it is scarcely ne- 
cessary for Massachusetts to repeat the prediction of the learned 
jurist of South Carolina, that " retaliation will follow," and all 
the other and worse evils that come in its train. The most 
admirable form of government which the wit and patriotism of 
man ever devised to develope his energies and to promote his 
happiness, must become the victim of his lawless passions. 
Massachusetts will do nothing voluntarily to hasten so deplo- 
rable a result, or rather she will sacrifice much to avert it. But 
she will do her duty to her people, whether in the less or the 
more favored condition of society. She will never relax in her 
demand of all the rights which belong to her as a State and a 
member of the Union, or in the exertion of her utmost energies 
in support of the undying principles of justice and liberty 
among men, the base of her social edifice, cemented in the 
blood of many of its founders, as they are the pride and the 
honor of modern civilization. 



26 TREATMENT OF SAMUEL HOAR. [Feb. 



APPENDIX 



The following Laws of the State of South Carolina may be referred to, in 
order to sustain the allegations of Massachusetts, They are quoted by their 
Titles only, excepting the two last, which, as embodying the substance of all 
the legislation now in force, are given in full, in the material parts, to the pre- 
sent question. 

1. An Act to restrain the emancipation of slaves, and to prevent free persons 
of color from entering into this State ; and for other purposes. Passed 20 
December, 1820. 

2. An Act for the better regulation and government of free negroes and 
persons of color; and for other purposes. Passed 21 December, 1822. 

3. An Act the more effectually to prohibit free negroes and persons of color 
from entering into this State ; and for other purposes. Passed 20 December, 
1823. 

4. An Act to amend " An Act the more effectually to prohibit free negroes 
and persons of color from entering into this State ; and for other purposes." 
20 December, 1825. 

5. An Act more effectually to prevent free negroes and other persons of 
color from entering into this State ; and for other purposes. Passed 19 De- 
cember, 1835. 

Section 1. Be it enacted by the Senate and House of Representatives, 
now met and sitting in General Assembly, and by the authority of the same, 
That from and after the passing of this Act, it shall not be lawful for any free 
negro or person of color to migrate into this State, or be brought or introduced 
into its limits, under any pretext whatever, by land or by water. And in case 
any free negro or person of color (not being a seaman on board any vessel 
arriving in this State, shall migrate into, or be introduced into tliis State con- 
trary to this Act, it shall and may be lawful for any white person to seize and 
convey him or her before any magistrate of the district or parish where he or 
she may be taken ; and it shall be the duty of the sheriff or any constable in 
the parish or district in which said entry shall be made, and of the city mar-v 



1845.] SENATE— No. 31. 27 

shals in the city of Charleston, should the entry be made in Charleston, upon 
information of the migration or introduction of any such free negro or person 
of color, to arrest and bring before some magistrate of the district or parish 
where the said free negro or person of color shall be taken ; which magistrate 
is by this Act empowered to commit to prison, or, at his discretion, to hold to 
bail, such free negro or person of color, and to summon three freeholders and 
form a court, as the law directs for the trial of persons of color, and examine 
such free negro or person of color, within six days after his or her arrest, and 
on conviction, to order him or her to leave the State, and to commit such free 
negro or person of color so convicted, to close prison, until such time as he or 
she can leave the State ; or to release him or her on sufficient bail, for any 
time not exceeding fifteen days, at the discretion of the magistrate. And 
every free negro or person of color so bailed, and ordered to leave tlie State as 
aforesaid, who shall not have left the State within the time for which he or 
she shall have been released on bail, or who, having left the State after con- 
viction as aforesaid, shall return into the same, shall be arrested and commit- 
ted to close prison as aforesaid ; and upon proof before a court, to be constituted 
as this Act directs, of his or her having failed to leave the State as aforesaid, 
or of his or her having returned into the State after having left the same as 
aforesaid, he or she shall be subjected to such corporal punishment as the said 
court in their discretion shall think fit to order. And if, after said sentence or 
punishment, such free negio or person of color shall still remain in the State 
longer tlian the time allowed, or having left the State shall thereafter return to 
the same, upon proof and conviction thereof, before a court to be constituted as 
hereinbefore directed, he or she shall be sold at public sale as a slave ; and the 
proceeds of such sale shall be appropriated and applied, one half thereof to the 
use of the State, and the other half to the use of the informer. 

II. And be it further enacted by the authority aforesaid. That it shall not be 
lawful for any free negro or person of color to come into this State, on board 
any vessel, as a cook, steward, or mariner, or in any other employment on 
board such vessel ; and in case any vessel shall arrive in any port or harbor of 
this State, from any other State or foreign port, having on board any free ne- 
gro or person of color, employed on board such vessel, as a cook, steward, 
or mariner, or in any other employment, it shall be the duty of the sheriflf of 
the district in which such port or harbor is situated, immediately on the arrival 
of such vessel, to apprehend such free negro or person of color, so arriving 
contrary to this act, and to confine him or her closely in jail, until such vessel 
shall be hauled off from the wharf, and ready to proceed to sea. And that 
when said vessel is ready to sail, the captain of the said vessel shall be bound 
to carry away the said free negro or person of color, and to pay the expenses 
of his or her detention. And in every such case, it shall be the duty of the 
sheriff aforesaid, immediately on the apprehension of any free negro or person 
of color, to cause said captain to enter into a recognizance, with good and 
sufficient security, in the sum of one thousand dollars, for each free negro or 



28 TREATMENT OP SAMUEL HOAR. [Feb. 

slave so brought or introduced into this State, that he will comply with the re- 
quisitions of this Act; and that, on his neglect, refusal or inability to do the 
same, he shall be compelled by the sheriff aforesaid to haul said vessel into 
the stream, one hundred yards distance from the shore, and remain until said 
vessel shall proceed to sea. And if said vessel shall not be hauled off from the 
shore as aforesaid, on the order of the sheriff aforesaid, within twenty-four 
hours after the said order, the captain or commanding officer of said vessel 
shall be indicted therefor, and on conviction, forfeit and pay one thousand dol- 
lars, and suffer imprisonment not exceeding six months. 

III. And be it further enacted by the authority aforesaid, That whenever 
any free negro or person of color shall be apprehended and committed to jail, 
as having arrived in any vessel in the capacity of cook, steward, mariner, or 
otherwise, contrary to this Act, it shall be the duty of the sheriff, during the 
confinement in jail of such free negro or person of color, to call upon some jus- 
tice of the peace or quorum, to warn such free negro or person of color, never 
to enter the said State, after he or she shall have departed therefrom ; and such 
justice of the peace or quorum, shall, at the time of warning such free negro or 
person of color, insert his or her name in a book to be provided for that pur- 
pose by the sheriff, and shall therein specify his or her age, occupation, height, 
and distinguishing marks ; which book shall be good and sufficient evidence of 
such warning. And said book shall be a public record, and be subject and 
open to the examination of all persons who may make application to the clerk 
of the court of general sessions, in whose office it shall be deposited. And 
such justice shall receive the sum of two dollars, payable by the captain of the 
vessel in which said free negro or person of color shall be introduced into tliis 
State, for the services rendered in making said entry. And every free negro or 
person of color who shall not depart the State, in case of the captain refusing 
or neglecting to carry him or her away, or having departed, shall ever again 
enter into the limits of this State, by land or by water, after having been 
warned as aforesaid, shall be dealt with as the first section of this Act directs 
in regard to persons of color, who shall migrate or be brought into this State. 

IV. And be it furtlier enacted by the authority aforesaid, That it shall not 
be lawful for any master or captain of any vessel, or for any other person, to 
introduce or bring into the limits of this State, any free negro or person of 
color as a passenger, or as a cook, mariner, steward, or in any other capacity, 
on board of such vessel, whose entrance into this State is prohibited by this 
Act. And if any master or captain of any such vessel, as aforesaid, shall bring 
in or introduce into this State any such free negro or person of color, whose 
entrance is prohibited as aforesaid, or if any other person shall introduce by 
land as a servant, any free negro or person of color, every such person shall, 
for the first offence, be indicted therefor, and, on conviction, be fined in a sum 
not exceeding one hundred dollars ; and for the second offence be liable to for- 
feit and pay for each free negro or person of color so brought into this State, 
the sum of one thousand dollars, and shall, moreover, be liable to be imprisoned 



1845.] SENATE— No. 31. 29 

for any tenn of time not exceeding six months. And such free negro or per- 
son of color, so introduced, whose entrance into tliis State is prohibited as 
aforesaid, shall be dealt with as is prescribed in the first section of this Act. 

6. AN ACT to provide for the punishment of persons disturbing the peace of 
this State, in relation to Slaves and Free Persons of Color. Passed Decem- 
ber, 1844. 

I. Be it enacted by the Senate and House of Representatives, now met and 
sitting in General Assembly, and by the authority of the same : That any per- 
son or persons who shall on his, her, or their own behalf, or under color, or in vir- 
tue of any commission or autliority from any State, or public authority of any 
State in this Union, or of any foreign power, come within the limits of this 
State for the purpose of, or with the intent to disturb, counteract or hinder the 
operation of such laws and regulations as have been or shall be made by the 
public authorities of this State, in relation to slaves or free persons of color, 
such person or persons shall be deemed guilty of a high misdemeanor, and 
shall be committed for trial to the common jail of the district, by any one of 
the Judges of the Courts of law or equity, or the Recorder of the city of 
Charleston, unless admitted to bail by the said Judge or Recorder ; and upon 
conviction thereof by any Court of competent jurisdiction, shall be sentenced 
to banishment from the State, and to such fine and imprisonment as may be 
deemed fitting by the Court which shall have tried such ofl^ence. 

II. That any person within this State, who shall at any time accept any 
commission or authority from any State or public authority of any State in this 
Union, or from any foreign power, in relation to slaves or free persons of color, 
and who shall commit any overt act with intent to disturb the peace or securi- 
ty of this State, or with intent to disturb, counteract or hinder the operation of 
the laws or regulations of the public authorities of this State, made or to be 
made in relation to slaves or free persons of color, such person shall be deem- 
ed guilty of a misdemeanor, and on conviction thereof, before any competent 
Court, shall be sentenced to pay, for the first offence, a fine not exceeding one 
thousand dollars, and to be imprisoned not exceeding one year; and for the 
second offence he shall be imprisoned for seven years, and pay a fine not less 
than one thousand dollars, or be banished from the State, as the Court may 
see fit. 

III. That the Governor, for the time being, shall require any person or per- 
sons, who shall or may have come Avithin the limits of this State, on his, her, 
or their own behalf, or under color, or in virtue of any commission or authori- 
ty from any State in this Union, or from any foreign power, having relation to 
the laws or regulations of this State on the subject of slaves or free persons of 
color, to depart from the limits of this State within forty-eight hours after such 
notice, and such person shall thereupon be bound to depart ; and in case of his 



30 TREATMENT OF SAMUEL HOAR. [Feb. 

neglect or refusal so to depart, as aforesaid, the said person shall be deemed 
guilty of a high misdemeanor, and shall be committed by the same authority 
hereinbefore stated, for trial, to the common jail of the district, unless admit- 
ted to bail as hereinbefore stated ; and upon due conviction before any Court 
of competent jurisdiction, shall be sentenced to be banished from the State, 
and to such fine and imprisonment as the Court shall think expedient. 

IV. That any person who shall be convicted a second or any subsequent 
time under the provisions of the first or third sections of this Act, shall be im- 
prisoned for a term not less than seven years, and shall pay a fine not less than 
one thousand dollars, and shall, in addition thereto, be banished from the 
State. 

V. That it shall be the duty of the Sheriff of the district to see that any 
sentence of banishment be duly executed, and that the offender be sent without 
the limits of the State ; and in case any person so banished shall return within 
the State, (unless by unavoidable accident,) the Sheriff of the district where he 
may be found, shall hold him in close confinement under the original sentence, 
until such offender shall enter into recognizance before the clerk of the Court, 
with sufficient sureties, to comply with the terms of said sentence, and forever 
to remain without the limits of this State. 



EXTRACT 

from the Journal of the House of Representatives of the United States, for the 
second session of tlve seventeenth Congress — 1822, 1823. 

Wednesday, February 19, 1823. 

"Mr. Sergeant presented a petition of sundry masters of American vessels, 
lying in the port of Charleston, in the State of South Carolina, complaining of 
the effect of acts, recently passed by the Legislature of that State, for the bet- 
ter regulation and government of free negroes and persons of color, and for 
the establishment of a competent force, to act as a municipal guard, for the 
protection of Charleston and its vicinity ; by which acts they are either de- 
prived of the services of their colored mariners, or are subjected to considera- 
ble extra expense and detention ; and praying the interposition of Congress." 

Ordered, That the said petition be referred to the Committee on the Ju- 
diciary. 

PETITION 

of sundry masters of vessels lying in the port of Charleston, S. C, referred to in 

the extract from the Journal. 

To the Honorable the Senate and House of Representatives of the United 
States in Congress assembled : — 

The petition of the undersigned, masters of American vessels lying in the 
port of Charleston, S. C, showeth, 

That the mariners employed on board of their vessels, are such persons as 



1845.] SENATE— No. 31. 31 

the laws of the United States require — native and naturalized American sea- 
men ; that many of these are free colored persons, native citizens of the Unit- 
ed States ; that, on the 21st day of December, 1822, the Legislature of South 
Carolina passed an act, which not only deprives us of the services of our col- 
ored mariners, but subjects our vessels to a considerable expense and deten- 
tion ; and they have provided by the said act, that, if any vessel shall come 
into any port or harbor of this State, from any other State, or foreign port, hav- 
ing on board any free negroes or persons of color, as cooks, stewards or 
mariners, or any other employment on board said vessels, such free negroes 
and persons of color, shall be liable to be seized and confined in prison, 
until the vessel they were attached to shall clear out and depart from the 
State : and when said vessel is ready to sail, the captain or master of said 
vessel shall be bound to carry away the said free negro, or person of color, and 
pay tlie expenses of his detention ; and in case of his neglect or refusal so to 
do, he shall be liable to be indicted ; and, on conviction thereof, shall be fined 
in a sum of not less than one thousand dollars, and be imprisoned not less than 
two months, and such free negroes and persons of color, shall be deemed and 
taken as absolute slaves, and sold in conformity to the provisions of the Act, 
passed on the 30th day of December, 1820. 

That since the passage of the Act of 1822, several vessels, under the com- 
mand of many of your petitioners, have arrived in the port of Charleston, all of 
which had on board, as cooks, stewards, or mariners, free persons of color, na- 
tive citizens of the United States ; that upon the arrival of the said vessels in 
Charleston, they were visited by the sheriff of Charleston district or his depu- 
ties, and all free persons of color, native citizens of the United States, were 
seized (without a writ or any crime alleged) and forcibly taken out of the vessel 
and lodged in the jail of the State ; that, thereupon, one of your petitioners, 
Captain Jared Bunco of the Georgia packet, a regular trader between Phila- 
delphia and Charleston, did appeal to a court of the State of South Carolina, 
for a habeas corpus, to inquire into the cause of the arrest and detention of 
Andrew Fletcher (steward), and David Ayres (cook), both free persons of color, 
and native citizens of the United States; that the said writ being allowed by 
the said court, and the sheriff having returned that they had been arrested and 
imprisoned under the before-mentioned act of 1822, and a motion having been 
made for their discharge, on the ground that the said act was contrary to the 
Constitution of the United States, and the court having determined, that the 
said act was not unconstitutional, the case in question was removed, by appeal, 
to the highest tribunal of the State, where, after argument, the said court be- 
ing divided in opinion, the case was suspended, and the prisoners were de- 
prived of the relief for which they moved, and do still remain in confine- 
ment. 

The undersigned petitioners have therefore been induced to submit their 
grievances before the general government, to relieve them from the effects of 
an act which they believe is in violation of the Constitution of the United 
States, and of the authority of the federal head. 



32 TREATMENT OF SAMUEL HOAR. [Feb. 

That the act in question does destroy the liberty of freemen, and regulates 
commerce by interfering with the freedom of navigation, and the employment 
of seamen must be apparent, when it is seen that the object of it is to expel, 
from all vessels entering the ports of South Carolina, all free persons of 
color. 

Your petitioners pray that the government of the United States will inter- 
pose in their behalf, and will adopt such energetic measures as will relieve 
them from the situation they are laboring under, by exposing their free colored 
mariners to an unlawful imprisonment, and their vessels to an enormous and 
unnecessary expense and detention. 

Charleston, S. C, Feb. 7th, 1823. Signed, Tared Bunce, William Brown, 
Nathan Cook, Stephen Perry and thirty-eight others. 

[Extract from the Journal.] 

Saturday, March 1, 1823. 
Ordered, That leave be given to withdraw the several petitions presented to 
this House at the present session, which have not been definitively acted on. 



[Extract.] JOURNAL H. R., U. S.— Third Session, 27th Congress. 

Tuesday, December 27, 1842. 
Under the order of the House of the 29th of March, 1842, was presented by 
Mr. Winthrop a memorial of citizens of Boston, owners and masters of vessels 
and others, representing that free colored seamen are seized and imprisoned in 
certain Southern ports, to the prejudice and detriment of their interest, and of 
the commerce of those States, and praying Congress to grant them relief, and 
render effectual, in their behalf, the privileges of citizenship secured by the 
Constitution of the United States ; which was referred to the Committee on 
Commerce. 

MEMORIAL. 

To the Honorable the Senate and House of Representatives of the United States 
in Congress assembled : 

Your petitioners, citizens of the United States, and some of them owners and 
masters of vessels. 

Respectfully represent : 

That on board of that large number of vessels accustomed to touch at the 
ports of Charleston, Savannah, Mobile and New Orleans, it is frequently ne- 
cessary to employ free persons of color : 

And whereas it frequently happens that such crews are taken from the ves- 
sels, thrown into prison, and their detained at their own expense, greatly to the 
prejudice and detriment of their interest, and of the commerce of these States : 



1845.] SENATE— No. 31. 33 

They pray your honorable body to grant them relief, and render effectual in 
their behalf the privileges of citizenship secured by the Constitution of the 
United States. 

And, as in duty bound, will ever pray. 

Signed by Benjamin Rich, Henry Oxnard, and a hundred and fifty-three 
others. 

[Extract.] JOURNAL H. R., U. S. 

Friday, January 20, 1843. 

Mr. WiTNHROP, from the Committee on Commerce, to which was referred, 
on the 27th of December ultimo, the memorial of Benjamin Rich, J. I. Bow- 
ditch, Henry Oxnard, Samuel Appleton, Abbott Lawrence and other citizens 
of the United States residing in Boston, setting forth that free colored seamen 
are seized and imprisoned in certain Southern ports, to the prejudice of com- 
merce, and contrary to the privilege of citizens, and praying relief, made a re- 
port on the said memorial. 

Mr. Rayner, from the minority of the Committee on Commerce, in relation 
to the subject matter of the preceding report of the Committee, submitted, by 
leave, his views in writing upon the subject. 

Leave was given to Mr. John P. Kennedy to submit, in writing hereafter, 
his views upon the same subject. 

A motion was made, that the usual number of said reports, with the views of 
the minority, be printed. 

A motion was also made by Mr. Rayner that 5000 copies thereof, extra, be 
also printed. 

This motion was laid over, for consideration, under the rules. 

A motion was made by Mr. Black, that the motion to print the usual num- 
ber, do lie on the table. 

And the question being put 

It was decided in the negative. Yeas, - - - - 71 

Nays, - - - - 114 

The yeas and nays being desired by one-fifth of the members present. Those 
who voted in the affirmative, are, 

Mr. Arch'd H. Arrington, Mr. Patrick C. Caldwell, Mr. Walter T. Colquitt, 

Richard W. Barton, John Campbell, Mark A. Cooper, 

Edward J. Black, Wm. B. Campbell, Edward Cross, 

Aaron V. Brown, Thos. J. Campbell, John R. [. Daniel, 

Edmund Burke, Zadok Casey, John B. Dawson, 

William Butler, Reuben Chapman, Ezra Dean, 

William O. Butler, Nathan Clifford, Edmund Deberry, 

Green W. Caldwell, Walter Coles, William Doan, 
5 



34 



TREATMENT OF SAMUEL HOAR. 



[Feb 



Mr. Andrew W. Doig, Mr. 
Ira A. Eastman, 
John C. Edwards, 
Charles A. Floyd, 
Joseph Fornance, 
James Gerry, 
Thomas W. Gilmer, 
William L. Goggin, 
William O. Goode, 
Amos Gustine, 
William A. Harris, 
Samuel L. Hays, 
Isaac E. Holmes, 
George W. Hopkins, 
George S. Houston, 
Edmund W. Hubard, 
R. M. T. Hunter, 



William Jack, 
Cave Johnson, 
George M. Keim, 
Dixon H. Lewis, 
Abraham McClellan, 
James I. McKay, 
John McKeon, 
James Matthews, 
William Medill, 
James A. Meriwether, 
John Miller, 
Anderson Mitchell, 
John Moore, 
Peter Newhard, 
Bryan Y. Owsley, 
William W. Payne, 



Mr. Francis W. Pickens, 
Arnold Plumer, 
Cuthbert Powell, 
John R. Reding, 
Abraham Rencher, 
James Rogers, 
Romulus M. Saunders, 
William Smith, 
John Snyder, 
James C. Sprigg, 
George W. Summers, 
George Sweney, 
John Taliaferro, 
Samuel W. Trotti, 
Hopkins L. Turney, 
Christ'er H. Williams. 



Those who voted in the negative, are 



Mr. John Quincy Adams, Mr. 
Elisha H. Allen, 
Landaff W. Andrews, 
Sherlock I. Andrews, 
Thomas D. Arnold, 
Alfred Babcock, 
Daniel D. Barnard, 
Benjamin A. Bidlack, 
Victory Birdseye, 
Nathaniel B. Borden, 
John M. Botts, 
Samuel S. Bowne, 
David P. Brewster, 
George N. Briggs, 
David Bronson, 
Jeremiah Brown, 
Barker Burnell, 
William B. Calhoun, 
Timothy Childs, 
Thos. C. Chittenden, 
Staley N. Clarke, 
James G. Clinton, 
Benjamin S. Cowen, 
Robert B. Cranston, 



James H. Cravens, Mr. 
Caleb Gushing, 
Garrett Davis, 
Richard D. Davis, 
John Edwards, 
Horace Everett, 
Charles G. Ferris, 
Millard Fillmore, 
John G. Floyd, 
A. Lawrence Foster, 
Seth M. Gates, 
Meredith P. Gentry, 
Joshua R. Giddings, 
Patrick G. Goode, 
Samuel Gordon, . 
Francis Granger, 
Willis Green, 
Thomas Henry, 
Jacob M. Howard, 
Charles Hudson, 
Hiram P. Hunt, 
Charles J. Ingersoll, 
Joseph R. Ingersoll, 
James Irvin, 



William W. Irwin, 
Francis James, 
Isaac D. Jones, 
John P. Kennedy, 
Henry S. Lane, 
Archibald L. Linn, 
Nath'l S. Littlefield, 
T.M. T. McKennan, 
Francis Mallory, 
Alfred Marshall, 
Samson Mason, 
John Mattocks, 
John P. B. Maxwell, 
John Maynard, 
Christopher Morgan, 
Calvary Morris, 
Jeremiah Morrow, 
Thomas B. Osborne, 
William Parmenter, 
Samuel Partridge, 
Nath'l G. Pendleton, 
John Pope, 
Robert Ramsey, 
Benjamin Randall, 



1845.] 



SENATE— No. 31. 



35 



Mr. Joseph F. Randolph, 
Kenneth Rayner, 
John Reynolds, 
Joseph Ridgway, 
Lewis Riggs, 
George B. Rodney, 
James I. Roosevelt, 
William Russell, 
James M. Russell, 
Leverett SaltonstaJl, 
John Sanford, 
Charles S. Sewell, 
William Slade, 
Truman Smith, 



Mr. Edward Stanley, 
Lewis Steenrod, 
Samuel Stokely, 
Charles C. Stratton, 
Alex. H. H. Stuart, 
John T. Stuart, 
John B. Thompson, 
Rich. W. Thompson, 
Jacob Thompson, 
Joseph L. Tillinghast, 
George W. Toland, 
Philip Triplett, 
Joseph Trumbull, 
Jos. R. Underwood, 



Mr. John Van Buren, 
Hen. Van Rensellaer, 
David Wallace, 
Lett Warren, 
John B. Weller, 
Edward D. White, 
Joseph L. White, 
Thos. W. Williams, 
Robert C. Winthrop, 
Fernando Wood, 
Thos. Jones Yorke, 
Augustus Young, 
John Young. 



And the question was put, under the operation of the previous question, on 
the motion to print the usual number. 
And passed in the affirmative. 



[Extract.] 



JOURNAL H. R., U. S. 

Saturday, January 21, 1843. 



The motion submitted by Mr. Rayner for the printing of 5000 copies extra 
of the report of the Committee on Commerce on the memorial of citizens of 
Boston in relation to the imprisonment of colored seamen in certain Southern 
ports, was considered and agreed to. 

[Extract.] JOURNAL H. R., U. S. 

Monday, January 23, 1843. 

A motion was made by Mr. Botts that the House do reconsider the vote of 
Saturday, the 21st instant, by which 5000 extra copies were ordered to be 
printed of the Report of the Committee on Commerce on the memorial of citi- 
zens of Boston in relation to the imprisonment of colored seamen in southern 
ports of the United States. 

A motion was made by Mr. Calhoun, that the motion to reconsider do lie on 
the table. 

And the question being put 

It passed in the negative. Yeas, .... 86 

Nays, . . . .111 

The previous question was then ordered and put, viz. shall the main question 
be now put. 
And passed in the affirmative. Yeas, .... 121 

Nays, .... 68 



36 TREATMENT OF SAMUEL HOAR. [Feb. 

The main question was then put, viz : Will the House reconsider the vote 
by which 5000 copies extra were ordered to be printed of the report of the 
Committee on Commerce on the memorial of citizens of Boston in relation to 
the imprisonment of colored seamen in certain southern ports of the United 
States. 

And passed in the affirmative. Yeas - - - - 111 

Nays - ... 84 

The question then again recurred on the motion that 5000 extra copies be 
printed ; when 

A motion was made by Mr. Wise that that motion do lie on the table ; 
Which passed in the affirmative. Yeas - - - - 104 

Nays - - - - 84 
And so the motion to print 5000 copies extra was ordered to lie on the table. 

[Extract.] 

Thursday, February 16, 1843. 
On motion of Mr. Botts : 

Resolved, That four thousand five hundred extra copies of the reports of the 
majority and minority of the Committee on Commerce, on the subject of the 
imprisonment of colored seamen in the southern ports, be printed. 

[Extract.] 

Monday, February 27, 1843. 

By Mr. Winthrop, a memorial (was presented) of certain colored seamen, 
citizens of Boston, in Massachusetts, remonstrating against the unconstitution- 
al laws of certain southern States, by which their privileges as citizens and 
seamen of the United States are infringed ; which memorial was referred to 
the Committee on Commerce. 

Extract Irom the report of the majority of the Committee on Commerce, 20 
January, 1843. 

The Committee are of opinion, that the memorialists are entitled to the re- 
lief for which they pray, and that important commercial interests, as well as 
the highest constitutional principles, call for the repeal of the laws in question. 
Congress, however, seem to have no means of affisrding such relief, or of ef- 
fecting such a repeal. The Judiciary alone can give relief from the oppres- 
sion of these laws while they exist, and the States which enacted tliem are 
alone competent to strike them from their statute books. The Committee can- 
not conclude this report, however, without putting the opinions at which they 
have arrived, into a shape in which they may receive the ratification and adop- 
tion of the House ; trusting that such an expression of them may not be with- 
out influence, in procuring for the memorialists, and still more for the oppressed 
and injured seamen in their employ, the redress which they rightfully de- 
mand. 



1845.] SENATtl— No. 31. 37 

The Committee accordingly submit the following resolutions: 

Resolved, That the seizure and imprisonment, in any port of this Union, of 
free colored seamen, citizens of any of (he States, and against whom there is 
no charge but tliat of entering said port in the prostculion of (heir rJchlful 
business, is a violation of the privileges of citizenship guaranteed by the 2d 
section of the 4th article of the Constitution of the United States. 

Resolved, That the seizure and imprisonment, in any port of this Union, of 
free colored seamen, on board of foreign vessels, against whom there is no 
charge but that of entering said port in the course of their lawful business, is 
a breach of the comity of nations, is incompatible with the rights of all nations 
in amity with the United States, and, in relation to nations with whom the 
United States have formed commercial conventions, is a violation of the 6th 
article of the Federal Constitution, which declares that treaties are a part of 
the supreme law of the land. 

Resolved, That any State laws, by which certain classes of seamen are pro- 
hibited from entering certain ports of this Union, in the prosecution of their 
rightful business, are in contravention of the paramount and exclusive power 
of the General Government to regulate commerce. 

Resolved, That the police power of the States can justify no enactments or 
regulations, which are in direct, positive, and permanent conflict with express 
provisions or fundamental principles of the national compact. 

Extract from the report of the minority of the same Committee. 

The undersigned begs leave to submit the following amendment to the res- 
olutions reported by the majority of the committee : Strike out all after Re- 
solved, and insert as follows : " That the committee be discharged from the 
further consideration of the subject." 

Respectfully submitted. 

K. RAYNER. 

EXTRACT FROM THE JOURNAL H. R. U. S. 

Thursday, March 2, 1843. 

The House proceeded to the consideration of the report made by Mr. Win- 
throp on the 20th January, from the Committee on Commerce, on the memorial 
of citizens of Boston, complaining of certain laws of certain southern States, 
insofar as they apply to colored seamen. 

A motion was made by Mr. Cave Johnson, that the said report do lie on the 
table. 

And the question being put 

It passed in the affirmative. Yeas - - - - 86 

Nays - - - - 59 



38 



TREATMENT OF SAMUEL HOAR. 



[Feb. 



The yeas and nays being desired by one fifth of the members present Those 
■who voted in the affirmative are 



Mr. Arch'd H. Arrington, Mr. 
Richard W. Barton, 
Benjamin A. Bidlack, 
John M. Botts, 
Lynn Boyd, 
Aaron V. Brown, 
Milton Brown, 
Edmund Burke, 
Patrick C. Caldwell, 
William B. Campbell, 
Thomas J. Campbell, 
George B. Cary, 
Zadok Casey, 
James G. Clinton, 
Walter Coles, 
George W. Crawford, 
Edward Cross, 
John R. I. Daniel, 
Garrett Davis, 
John B. Dawson, 
Edmund Deberry, 
Andrew W. Doig, 
John C. Edwards, 
Joseph Egbert, 
Charles A. Floyd, 
Joseph Fornance, 
Thomas F. Foster, 
Roger L. Gamble, 
Meredith P. Gentry, 



James Gerry, Mr. 

Thomas W. Gilmer, 
William O. Goode, 
Samuel Gordon, 
James Graham, 
William M. Guin, 
William A. Harris, 
George W. Hopkins, 
George S. Houston, 
Robert M. T. Hunter, 
Charles J. Ingersoll, 
Cave Johnson, 
John W. Jones, 
George M. Keim, 
John P. Kennedy, 
Andrew Kennedy, 
Thomas Butler King, 
Nath'l S. Littlefield, 
Joshua A. Lowell, 
Francis Mallory, 
Alfred Marshall, 
William Medill, 
Jas. A. Meriwether, 
John Miller, 
Anderson Mitchell, 
John Moore, 
Peter Newhard, 
Bryan Y. Owsley, 
Francis W. Pickens, 



John Pope, 
Cuthbert Powell, 
John Reynolds, 
Lewis Riggs, 
George B. Rodney, 
Romulus M.Saunders, 
Charles S. Sewell, 
William Smith, 
John Snyder, 
Edward Stanly, 
Lewis Steenrod, 
Alex. H. H. Stuart, 
George W. Summers, 
Thomas D. Sumter, 
John Taliaferro, 
Jacob Thompson, 
Philip Triplett, 
Samuel W. Trotti, 
Hopkins L. Turney, 
Jos. R. Underwood, 
John Van Buren, 
Wm. H. Worthington, 
John B. Miller, 
John Westbrook, 
Edward D. White, 
Chris'r H. Williams, 
Joseph L. Williams, 
Henry A. Wise. 



Those who voted in the negative, are 



Mr. John Quincy Adams, Mr, 
Osmyn Baker, 
Victory Birdseye, 
Bernard Blair, 
Wm. W. Boardman, 
Nath'l B. Borden, 
George N. Briggs, 
John H. Brockway, 
David Bronson, 



Jeremiah Brown, Mr. 
William B. Calhoun, 
Timothy Childs, 
Thos. C. Chittenden, 
John C. Clark, 
James Cooper, 
Benjamin S. Cowen, 
Robert B. Cranston, 
Richard D. Davis, 



Horace Everett, 
Wm. P. Fessenden, 
Millard Fillmore, 
Joshua R. Giddings, 
Hiland Hall, 
William Halstead, 
Jacob M. Howard, 
Charles Hudson, 
Joseph R. Ingersoll 



1845.] 



SENATE— No. 31. 



39 



Mr. James Irvin, 
Francis James, 
Archibald L. Linn, 
T. M. T. McKennan, 
Albert G. Marchand, 
Samson Mason, 
Joshua Mathiot, 
John Mattocks, 
John P. B. Maxwell, 
Calvary Morris, 
Jeremiah Morrow, 



Mr.' Thomas B. Osborne, 

William Parmenter, 
Nath'l G. Pendleton, 
Robert Ramsey, 
Benjamin Randall, 
Joseph F. Randolph, 
Almon H. Read, 
John R. Reding, 
Joseph Ridgway, 
James I. Roosevelt, 
William Russell, 



Mr. James M. Russell, 
Leverett Saltonstall, 
William Slade, 
Charles C. Stratton, 
John T. Stuart, 
George W. Toland, 
Joseph Trumbull, 
Thos. W. Williams, 
Robert C. Winthrop, 
John Younsr. 



Opinion of the Hon. William Johnson, delivered on the 7th August, 1823, in 
the case of the arrest of the British seaman under the third section of the 
State act, entitled " *4n act for the better regulation of free negroes and persons 
of color, and for other purposes," passed in December last. 

Ex parte Henry Elkison, a subject of His Britannic Majesty, 

versus 

Francis Deliesseline, Sheriff of Charleston District. 



The motion submitted by Mr. King, in behalf of the prisoner, is for the writ 
of habeas corpus ad subjiciendum ; and if he should fail in this motion, then for 
the writ de homine replegiando — the one regarding the prisoner in a criminal, 
the other in a civil aspect ; the first motion having for its object his discharge 
from confinement absolutely, the other his discharge on bail, with a view to try 
the question of the validity of the law under which he is held in confinement. 

A document, in nature of a return, under the hand and seal of the sheriff, 
has been laid on my table by the gentlemen who conduct the opposition, from 
which it appears that the prisoner is in the sheriff's custody under an act of 
this State, passed in December last ; and indeed the whole cause has been 
argued under the admission that he is in confinement under the third section of 
that act, as he states in his petition. 

The act is entitled " An act for the better regulation of free negroes and 
persons of color, and for other purposes." And the third section is in these 
words : " That if any vessel shall come into any port or harbor of this State, 
from any other State or foreign port, having on board any free negroes or 
persons of color, as cooks, stewards or mariners, or in any other employ- 
ment on board of said vessel, such free negroes or persons of color shall be 
liable to be seized and confined in jail until such vessels shall clear out and 



40 TREATMENT OF SAMUEL HOAR. [Feb. 

depart from this State ; and that, when said vessel is ready to sail, the cap- 
tain of said vessel shall be bound to carry away the said free negro or free 
persjn of color, and to pay the expenses of his detention ; and, in case of his 
neglect or refusal so to do, he shall be liable to be indicted, and, on conviction 
thereof, shall be fined in a sum not less than one thousand dollars, and impri- 
soned not less than two months ; and such free negroes or persons of color shall 
be deemed and taken as absolute slaves, and sold in conformity to the provis- 
ions of the act passed on the 20th December, 18'20, aforesaid." 

As to the description or character of this individual, it is admitted that he 
was taken by the sheriff, under this act, out of the ship Homer, a British ship 
trading from Liverpool to this place. From the shipping articles, it appears 
that he was shipped in Liverpool; from the captain's affidavit, that he had 
known him several years in Liverpool as a British subject ; and from his own 
affidavit, that he is a native subject of Great Britain, born in Jamaica. 

In support of this demand on the protection of the United States, the British 
consul has also presented his claim of this individual as a British subject, and 
with it the copy of a letter from Mr. Adams to Mr. Canning, of June 17th last, 
written in answer to a remonstrance of Mr. Canning against this law. Mr. 
Adams's letter contains these words : " With reference to your letter of the 
15th February last, and its enclosure, I have the honor of informing you that, 
immediately after its reception, measures were taken by the Government of the 
United States for effecting the removal of the cause of complaint set forth in 
it, which it is not doubted have been successful, and will prevent the recur- 
rence of it in future." 

This communication is considered by the consul as a pledge which this 
court is supposed bound to redeem. It had its origin thus : 

Certain seizures under this act were made in January last, some on board of 
American vessels, and others in British vessels ; and among the latter, one 
very remarkable for not having left a single man on board the vessel, to guard 
her in the captain's absence. 

Applications were immediately made to me in both classes of cases, for the 
protection of the United States authority ; in consequence of which I called 
upon the district attorney for his official services. Several reasons occurred 
to induce me to instruct him to bring the subject before the State judiciary. I 
felt confident that the act had been passed hastily, and without due considera- 
tion; and, knowing the unfavorable feeling that it was calculated to excite 
abroad, it was obviously best that relief should come from the quarter from 
which proceeded the act complained of. Whether I possessed the power or not 
to issue the writ of habeas corpus, it was unquestionable that the State judges 
could give this summary relief; and I therefore instructed Mr. Gadsden to make 
application to the State authorities, and to do it in the manner most respectful 
to them. In the mean time, I prevailed on the British consul, the late Mr. 
Moody, and the northern captains, to suppress their complaints, fully confident 
that when the subject came to be investigated, they would be no more mo- 



1845.] SENATE— No. 31. 41 

lested. The application Avas made to State authority, and the men were re- 
lieved : but, the ground of relief not being in its nature general or perma- 
nent, Mr. Moody made his representations to Mr. Canning, and the northern 
captains, I am informed, did the same to Congress or to the Executive. What 
passed afterwards, came to my knowledge in such a mode that, after what 
has publicly transpired on this argument, I do not think proper, as it certainly 
is not necessary, to declare it. A gentleman in his place (Col. Hunt) has de- 
clared, that he is authorized to deny that Mr. Adams was sanctioned by any 
thing that transpired between himself and any member of the State delega- 
tion to give such a pledge. Certain, however it is, that from that time the 
prosecutions under this act were discontinued until lately revived by a volun- 
tary association of gentlemen, who have organized themselves into a society, 
to see the laws carried into effect. And here, as I well know the discussion 
that this occurrence will give rise to, I think it due to the State officers to 
remark, that from the time that they have understood that this law has been 
complained of, on the ground of its unconstitutionality and injurious effects 
upon our commerce and foreign relations, they have shown every disposition 
to let it sleep. On the present occasion, the attorney general has not appear- 
ed in its defence. The opposition to the discharge of the prisoner has been 
conducted by Mr. Holmes, the solicitor of the association, and by Col. Hunt. As 
there is nothing done clandestinely or disavowed, there can be no offence giv- 
en by a suggestion which means no more than to show that pressing the exe- 
cution of this law at this time, is rather a private than a State act ; and to 
furnish an explanation that may eventually prove necessary to excuse Mr. Ad- 
ams to Mr. Caiming, and perhaps to excuse some members of the State dele- 
gation to Mr. Adams. 

Certain it is that I cannot officially take notice of Mr. Adams's letter. How- 
ever sufficient fur Mr. Canning to rely on, it is not legally sufficient to regu- 
late my conduct, or vest in me any judicial powers. The facts which I have 
communicated will, I hope, be sufficient to show that our administration has 
acted in good faith with that of Great Britain. 

Two questions have now been made in the argument — the first on the law 
of the case, the second on the remedy. 

On the unconstitutionality of the law under which this man is confined, it 
is not too much to say that it will not bear argument; and I feel myself sanc- 
tioned in using this strong language, from considering the course of reasoning 
by which it has been defended. Neither of the gentlemen has attempted to 
prove that the power therein assumed by the State can be exercised without 
clashing with the general powers of the United States to regulate commerce ; 
but they have both strenuously contended that, ex necessitate, it was a power 
which the State must and would exercise ; and, indeed, Mr. Holmes concluded 
his argument with the declaration, that if a dissolution of the Union must be 
the alternative, he was ready to meet it. Nor did the argument of Col. Hunt 
deviate at all from the same course. Giving it in the language of his own 

6 



42 TREATMENT OF SAMUEL HOAR. [Feb. 

summary, it was this: Soutli Carolina was a sovereign State when she adopted 
the Constitution — a sovereign State cannot surrender a right of vital import- 
ance: South Carolina, therefore, either did not surrender this right, or still 
possesses the power to resume it ; and Avhether it is necessary, or when it is 
necessary to resume it, she is herself the sovereign judge. 

But it was not necessary to give this candid expose of the grounds which 
this law assumes ; for it is a subject of positive proof that it is altogether irre- 
concilable with the powers of the general government; that it necessarily 
compromits the public peace, and tends to embroil us with, if not separate us 
from, our sister States ; in short, that it leads to a dissolution of the Union, 
and implies a direct attack upon the sovereignty of the United States. 

Let it be observed that the law is, " if any vessel" (not even the vessels of 
the United States excepted) " shall come into any port or harbor of this 
State," &c., bringing in free colored persons, such persons are to become " ab- 
solute slaves ;" and that without even a form of trial, as 1 understand the act, 
they are to be sold. By the next clause, the sheriff is vested with absolute 
power, and expressly enjoined to carry the law into effect, and is to receive the 
one-half of the proceeds of the sale. 

The object of this law, and it has been so acknowledged in argument, is to 
prohibit ships coming into this port from employing colored seamen, whether 
citizens or subjects of their own government or not. But if this State can 
prohibit Great Britain from employing her colored subjects, (and she has them 
of all colors on the globe), or if at liberty to prohibit tiie employment of her 
subjects of the African race, why not proliibit her from using those of Irish or 
of Scottish nativity ? If the color of the skin is to preclude the Lascar or the 
Sierra Leone seaman, why not the color of his eye or his hair exclude from 
our ports the inhabitants of her other territories ? In fact, it amounts to the 
assertion of the power to exclude the seamen of the territories of Great Brit- 
ain, or any other nation, altogether. With regard to various friendly nations, 
it amounts to an actual exclusion in its present form. Why may not the ship- 
ping of Morocco or of Algiers cover tlie commerce of France with this coun- 
try, even at the present crisis ? Their seamen are all colored ; and even the 
State of Massachusetts might lately, and may perhaps now, expedite to this 
port a vessel with her officers black, and her crew composed of Nantucket 
Indians, known to be among the best seamen in our service. These might all 
become slaves under this act. 

If this law were enforced upon such vessels, retaliation would follow ; and 
the commerce of this city, feeble and sickly, comparatively, as it already is, 
might be fatally injured. Charleston seamen, Charleston owners, Charleston 
vessels, might eo nomine be excluded from their commerce, or the United 
States involved in war and confusion. I am far from thinking that this power 
would ever be wantonly exercised ; but these considerations show its utter in- 
compatibility Avith the power delegated to Congress to regulate commerce with 
foreign nations and our sister States. 



1845.] SENATE— i\o. 31. 43 

Apply the law to the particular case before us, and the incongruity will be 
glaring. The offence, it will be observed, for which this individual is sup- 
posed to forfeit his freedom, is that of coming into this port in the ship Homer, 
in the capacity of a seaman. I say this is the whole of his offence ; for T will 
not admit the supposition that he is to be burdened with the offence of the 
captain in not carrying him out of the State. He is himself shut up; he can- 
not go off; his removal depends upon another. It is true the sale of him is 
suspended upon the conviction of the captain, and the captain has the power 
to rescue him from slavery. But suppose the captain, as is very frequently the 
case, may find it his interest or his pleasure to get rid of him, and of the wages 
due him, his fate is suspended upon the captain's caprice in this particular ; 
but it is the exercise of a dispensing power in the captain, and nothing more. 
The seaman's crime is complete, and the forfeiture incurred by the single act 
of coming into port ; and this even though driven into port by stress of weather, 
or forced, by a power which he cannot control, into a port for which he did not 
ship himself. The law contains no exception to meet such contingencies. The 
seaman's offence, therefore, is coming into the Slate in a ship or vessel ; that of 
the captain consists in hinging him in, and not taking him out of the Stale, and 
paying all expenses. Now, according to the laws and treaties of the United 
States, it was both lawful for this seaman to corae into this port in this vessel, 
and for the captain to bring him in the capacity of a seaman ; and yet these 
are the very acts for which the State law imposes these heavy penalties. la 
there no clashing in this ? It is in effect a repeal of the laws of the United 
States, pro tanlo, converting a right into a crime. 

And here it is proper to notice that part of the argument against the motion, 
in which it was insisted on that this law was passed by the State in exercise 
of a concurrent right. Concurient does not mean paramount; and yet, in or- 
der to divest a right conferred by the general government, it is very clear that 
the State right must be more than concurrent. 

But the right of the general government to regulate commerce with the sis- 
ter States and foreign nations is a paramount and exclusive right; and this 
conclusion we arrive at, whether we examine it with reference to the words of 
the Constitution or the nature of the grant. That this has been the received 
and universal construction, from the first day of the organization of the gener- 
al government, is unquestionable ; and tlie right admits not of a question any 
more than the fact. In the Constitution of the United States — the most won- 
derful instrument ever drawn by the hand of man — there is a comprehension 
and precision that is unparalleled; and I can truly say, that, after spending my 
life in studying it, I still daily find in it some new excellence. 

It is true that it contains no prohibition on the States to regulate foreign 
commerce. Nor was such a prohibition necessary; for the words of the grant 
sweep away the whole subject, and leave notliing for the States to act upon. 
Wherever this is the case, there is no prohibitory clause interposed in the 
Constitution. Thus, the States are not prohibited from regulating the value of 



\ 



44 TREATMENT OF SAMUEL HOAR. [Feb, 

foreign coins, or fixing a standard of weights and measures, for the very words 
imply a total unlimited grant. The words in the present case are, " to regu- 
late commerce with foreign nations, and among the several States, and with 
the Indian tribes." If Congress can regulate commerce, what commerce can 
it not regulate ? And tlie navigation ot ships has always been held, by all 
nations, to appertain to commercial regulations. 

But the case does not rest here. In order to sustain this law, the State must 
also possess a power paramount to the treaty-making power of the United 
States, expressly declared to be a part of the supreme legislative power of the 
land ; for the seizure of this man, on board a British ship, is an express viola- 
tion of the commercial convention with Great Britain of 1815. Our commerce 
with that nation does not depend upon the mere negative sanction of not being 
prohibited. A reciprocal liberty of commerce is expressly stipulated for, and 
conceded by that treaty ; to this the rights of navigating their ships in their 
own way, and particularly by their own subjects, is necessarily incident. If 
policy requires any restriction of this right, with regard to a particular class of 
the subjects of either contracting party, it must be introduced by treaty. The 
opposite party cannot introduce it by a legislative act of his own. Such a law 
as this could not be passed, even by the General Government, without furnish- 
ing a just cause of war. 

But to all this, the plea of necessity is urged ; and of the existence of that 
necessity we are told the State alone is to judge. Where is this to land us? 
Is it not asserting the right in each State to throw off the Federal Constitution 
at its will and pleasure ? If it can be done as to any particular article, it may 
be done as to all ; and, like the old Confederation, the Unim becomes a mere 
rope of sand. But I deny that the State surrendered a single power necessary 
to its security against this species of property. What is to prevent their being 
confined to their ships, if it is dangerous for them to go abroad ? This power 
may be lawfully exercised. To land their cargoes, take in others, and depart, 
is all that is necessary to ordinary commerce, and is all that is properly stipu- 
lated for in the convention of 1815, so far as relates to seamen. If our fears 
extend also to the British merchant, the supercargo, or master, being persons 
of color, I acknowledge that, as to them, the treaty precludes us from abridging 
their rights to free ingress and egress, and occupying houses and warehouses 
for the purposes of commerce. As to them, this law is an express infraction 
of the treaty. No such law can be passed consistently with the treaty, and, 
unless sanctioned by diplomatic arrangement, the passing of such a law is 
tantamount to a declaration of war. 

But if the policy of this law was to keep foreign free persons of color from 
holding communion with our slaves, it certainly pursues a course altogether 
inconsistent with its object. One gentleman likened the importation of such 
persons to that of clothes infected with the plague, or of wild beasts from Af- 
rica ; the other to that of fire-brands set to our own houses, only to escape by 
the light. But surely if the penalty inflicted for coming here is, in its effect, 



1845.] ' SENATE— No. 31. 45 

that of being domesticated, by being sold here, then we ourselves inoculate 
our community with the plague, we ourselves turn loose the wild beasts in our 
streets, and ive put the fire-brand under our own houses. If tliere are evil per- 
sons abroad Avho would steal to this place, in order to do us this mischief, (and 
the whole provisions of this act are founded in that supposition,) then this mode 
of disposing of offenders by detaining them here presents the finest facilities 
in the world for introducing themselves lawfully into the very situation in 
which they would enjoy the best opportunities of pursuing their designs. 

Now, if this plea of necessity could avail at all against the Constitution and 
Laws of the United States, certainly that law cannot be pronounced necessary 
which may defeat its own ends ; much less when other provisions of unexcep- 
tionable legality might be resorted to, which would operate solely to the end 
proposed, viz : the effectual exclusion of dangerous characters. On the fact 
of the necessity for all this exhibition of legislation and zeal, I say nothing — 
I neither admit nor deny it. In common with every other citizen, I am enti- 
tled to my own opinion; but when I express it, it shall be done in my private 
capacity. 

But what shall we say to the provisions of this act, as they operate on our 
vessels of war ? Send your sheriff on board one of them, and would the spir- 
ited young men of the navy submit to have a man taken ? It would be a repe- 
tition of the affair of the Chesapeake. The public mind would revolt at the 
idea of such an attempt ; and yet it is perfectly clear that there is nothing in 
this act which admits of any exception in their favor. 

Upon the whole, I am decidedly of opinion that the third section of the 
State act now under consideration is unconstitutional and void, and that every 
arrest made under it subjects the parties making it to an action of trespass. 

Whether I possess the power to aidminister a more speedy and efficacious 
remedy comes next to be considered. 

Tliat a party should have a right to his liberty, and no remedy t^ obtain it, 
is an obvious mockery; but it is still greater to suppose that he can be alto- 
gether precluded from his constitutional remedy to recover his freedom. 

I am firmly persuaded that the Legislature of South Carolina must have 
been surprised into the passing of this act. Either I misapprehended its pur- 
port, or it is studiously calculated to hurry through its own execution, so as to 
leave the object of it remediless. By giving it the form of a State prosecution, 
the prisoner is to be deprived of the summary interference of the United States 
authority ; and by passing it through the sheriff's hands, without the interven- 
tion of any court of justice, he is to be deprived of the benefit of the 25th sec- 
tion of the judiciary act, by which an appeal might be had to the Supreme 
Court. Thus circumstanced, it is impossible to conceal the hardships of his 
case, or deny his claim to some remedy. 

The opposition to issuing the writ of habeas corpus is founded altogether on 
the ground that he is in custody under State authority ; and the proviso to the 
14th section of the judiciary act of 1789 is relied on. That proviso is in these 



46 TREATMENT OF SAMUEL HOAR. [Feb. 

■words : " Provided, That writs of habeas corpus shall in no case extend to 
prisoners in jail, unless where they are in custody under or by color of the 
authority of the United States, or are committed ibr trial before some court of 
the same, or are necessary to be brought into some court to testify." 

Mr. King admits that this proviso is fatal to his motion, unless his case be 
taken out of it by one or both of the following considerations : 

1st. That, so far as it abridges the right of habeas coiyus, it is inconsistent 
with that provision of the Constitution which declares that " the privilege of 
the writ of habeas corpus shall not be suspended, unless when, in cases of re- 
bellion or invasion, the public safety may require it" — a state of facts which 
cannot possibly be predicated of the present ; or, 

2d. Tiiat the prisoner cannot be said to be in confinement under State au- 
thority, if the State law be void under which he is arrested ;. and being by his 
national character entitled to the protection of thig court — in other words, a 
constitutional suitor of the United States courts — this, which is the only ade- 
quate remedy, should be extended to him. 

These views of the subject certainly merit much consideration. Arguments 
in favor of this cherished right are not lightly to be passed over. But what 
are the courts of the United States to do ? We cannot undertake to judge 
when that crisis has arrived which the Constitution contemplates ; nor are we 
to undertake to define and limit the meaning of these words, the privilege of 
the writ of habeas corpus. Every State in the Union may have had different 
provisions, limiting and defining the extent of this privilege ; some, perhaps, 
confining themselves to the privilege as it stood at common law ; others adopt- 
ing some or all of those statute provisions which have wrought such a change 
in its practical utility. It can, then, only be left to Congress to give a uniform 
and national operation to this provision of the Constitution. In legislating on 
this subject, they have confined us to those cases in which the party is confined 
under United States authority, or is necessary to be introduced into its courts 
as witnesses. 

On the second point, it is to be observed that the proviso to the fourteenth 
section of the judiciary act imposes on the petitioner the necessity of main- 
taining the affirmative of his being confned under United States aidhority ; so 
that it it not enough to negative his being in custody under State authority, 
for the consequence is only that he is confined arbitrarily and without authority 
by a State officer — a case to which our power to issue this writ does not ex- 
tend. As far as Congress can extend and shall extend the power to afford re- 
lief by this writ, I trust I shall never be found backward to grant it. At pres- 
ent, I am satisfied that I am not vested with that power in this case. 

We come next to consider the motion for the writ de homine replegiando. 

And here the question appears to me to be, " what right have I to refuse 
it?" As well might I interpose to prevent the petitioner from suing out his 
writ for trespass and false imprisonment, or the captain his writ for trespass in 
taking the seaman from his vessel, or the ordinary writ of replevin, on distress 



1845.] SENATE— No. 31. 47 

for rent, as to refuse this writ de homine replegiando. If it is not the proper 
writ for his case, he must take the consequences ; but this is not the time and 
mode to try that question. It is the writ of common right, and contains upon 
the face of it its own death-warrant, if it be not legally grantable in any par- 
ticular case. If the return of the party to whom it issues shows that it is not 
a case proper for the remedy intended to be given, there it ends. If the re- 
turn be false, it may be contested ; if true, and it presents a proper case, then 
another writ issues, which brings in question the right of personal freedom. 
The whole of this is set forth in the Registrum Brevium, and in Fitzheibert, 
which is nearly copied from it. 

If my opinion, extra-judicial, be asked, I would express the most serious 
doubt whether this writ could avail the party against the sheriff'; but, as 
against his vendee, there is not a question that it will lie at common law. 

But gentlemen contend that this writ is obsolete ; that " it is not to be raked 
up from the ashes of the common law, to be now first used against the State 
of South Carolina ;" that it cannot issue when the habeas corpus, cannot issue ; 
and, finally, that the writ of ravishment of ward is the only writ established 
by a law of the State as the proper writ to try the question of freedom of a 
person of color, and no other can be substituted without changing the law 
respecting slaves. 

There is not one of these arguments that can be sustained, either in law or 
fact. The writ de homine replegiando is engrafted by law into the jurispru- 
dence of South Carolina ; nor is it unknown in actual practice, in cases to 
which it is applicable. In the State of New York it is familiarly used. It is 
true that the writ of ravishment ofivard is expressly given by a State law ; but 
it is given in favor of those who are by law declared to be prima facie held to 
be slaves. It curtails no right of a freeman, previously existing, and only 
operates to give an action to one whose condition or situation places him in 
absolute duresse, or to any other who shall charitably volunteer in his behalf 
as guardian. But the act under consideration furnishes itself the distinction 
between ordinary cases and the present. This act operates only as to free- 
men,yree persons of color, and not as to slaves ; so that a whole crew of slaves 
entering this port would be free from its provisions. It is an indispensable 
attribute of the individual afliected by it that he should be free. If he is not, 
the sheriff is not authorized by it to touch him; and, although forbid by other 
laws to remain here, his coming here does not expose him to seizure and im- 
prisonment under the provision of this law, whether it be constitutional or not. 
The negro act of 1747 supposes him a slave ; the present act supposes him a 
freeman. Several other answers might be given to the argument, but this one 
is sufficient. We do not pretend to a right to encroach on the poiver of llie 
State over its slave population. The power remains unimpaired. But under 
a State law this man is recognized as a freeman ; and in that view, if in no 
other, we are fully authorized to treat him as such. 

As to the argument that this writ cannot issue where the writ of habeas cor- 



48 TREATMENT OF SAMUEL HOAR. [Feb. 

pus cannot issue, it was fully answered by the petitioner's counsel. If the ar- 
gument proves any thing, it leads to the contrary conclusion. 

Upon the whole, I am led to the conclusion — 

That the third clause of the act under consideration is clearly unconstitu- 
tional and void, and the party petitioner, as well as the shipmaster, is entitled 
to actions, as in ordinary cases ; 

That I possess no power to issue the writ of habeas corpus, but for that 
remedy he must have recourse to the State authorities ; 

That, as to the writ dt homine rephgiando, I have no right to refuse it; but, 
although it will unquestionably lie to a vendee under the sheriff, I doubt 
whether it can avail the party against the sheriff himself The counsel will 
then consider whether he will sue it out. 



Opinion of Mr. Wirt. 

OJice of the Attorney General, May 8, 1824. 

Sir: — The third section of the legislative act of South ('arolina, entitled 
" An Act for the better Regulation and Government of Free Negroes and Per- 
sons of Color, and for other purposes," which you submit for my opinion, is in 
the following words : 

" And be it further enacted by the authority aforesaid. That if any vessel 
shall come into any port or harbor of this State, from any other State or foreign 
port, having on board any free negroes or persons of color, as cooks, stewards, 
mariners, or in any other employment on board such vessels, such free negroes 
or persons of color shall be liable to be seized and confined in jail until said 
vessel shall clear out and depart from the State ; and that, when said vessel is 
ready to sail, the captain of the said vessel shall be bound to carry away the 
said free negro or person of color, and pay the expenses of his detention ; and, 
in case of his neglect or refusal so to do, shall be liable to be indicted, and, on 
conviction thereof, shall be fined in a sum not less than one thousand dollars, 
and imprisoned not less than two months ; and such free negroes or persons of 
color shall be seized and taken as absolute slaves, and sold in conformity to 
the provisions of the act passed on the twentieth day of December, one thou- 
sand eight hundred and twenty, aforesaid." 

The question which you propounded for my opinion on this section is, 
" Whether it is compatible with the rights of nations in amity with the United 
States, or with the national Constitution ?" 

By the national Constitution, the power of regulating commerce with foreign 
nations and among the States is given to Congress ; and tliis power is, from its 
nature, exclusive. This power of regulating commerce is the power of pre- 
scribing the terms on which the intercourse between foreign nations and the 



1845.] SENATE— No. 31. 49 

United States, and between the several States of the Union, shall be carried 
on. Congress has exercised this power ; and among those terms there is no 
requisition that the vessels which are permitted to enter tlie ports of the several 
States shall be navigated wholly by white men. All foreign and domestic 
vessels complying with the requisitions prescribed by Congress, have a right 
to enter any port of the United States, and a right to remain there, unmolested 
in vessel and crew, for the peaceful purposes of commerce. No State can 
interdict a vessel which is about to enter her ports in conformity with the laws 
of the United States, nor impose any restraint or embarrassment on such ves- 
sel in consequence of her having entered in conformity with those laws, for 
the regulations of Congress on this subject being both supreme and exclusive, 
no State can add to them, vary them, obstruct them, or touch the subject in 
any shape whatever, without the concurrence and sanction of Congress. By 
the regulations of Congress, vessels navigated by black or colored men may 
enter any port of the Union for the purposes of commerce, without any molest- 
ation or restraint in consequence of having so entered ; but the section of the 
law of South Carolina which we are considering, declares, tha if any vessel 
shall enter one of her ports, navigated in whole or in part by negroes or per- 
sons of color, the crew, so far as they are negroes or persons of color, shall be 
immediately seized and imprisoned at the expense of the captain, with various 
other contingent and severe penalties, both on the captain and his imprisoned 
crew. Here is a regulation of commerce, of a highly penal character, by 
a State, superadding new i-estrictions to those which have been imposed by 
Congress ; and declaring, in effect, that what Congress has ordained may be 
freely and safely done, shall not be done but under heavy penalties. 

It seems very clear to me that this section of the law of South Carolina is 
incompatible with the national Constitution and the laws passed under it, and 
is therefore void. All nations in amity with the United States have a right to 
enter the ports of the Union, for the purposes of commerce, so long as, by the 
laws of the Union, commerce is permitted, and so far as it is permitted ; and, 
inasmuch as tliis section of the law of South Carolina is a restriction upon this 
commerce, it is incompatible with the rights of all nations which are in amity 
with the United States. 

There is another view of this subject. By the national Constitution, the 
power of making treaties with foreign nations is given to the General Govern- 
ment ; and the same Constitution declares that all the treaties so made shall 
constitute a part of the law of the land. The National Government has exer- 
cised this power, also, of making treaties. We have treaties subsisting with 
various nations, by which the commerce of such nations with the United States 
is expressly authorized, without any restriction as to the color of the crews by 
which it shall be carried on. We have such a treaty with Great Britain, as to 
which nation this question has arisen. The act of South Carolina forbids (or, 
what is the same thing, punishes) what this treaty authorizes. 

I am of the opinion that the section of the law under consideration is void, 
7 



50 TREATMENT OF SAMUEL HOAR. [Feb. 

as being ag-ainst the Constitution, treaties, and laws of the United States, 
and incompatible with the rights of all nations in amity with the United 
States, 

] have the honor to remain, very respectfully, your obedient servant, 

WILLIAM WIRT. 
To THE Secretary of State. 



: .<■ {Copy.} 

Judge Johnson to Mr. Adams, (Secretary of State.) 

Charltston, July 3, 1824. 

Sir, — I know not from whom the government expects communications such 
as the present, but I am daily made sensible that the eyes of the community 
are turned most particularly to the judges of the Supreme Court for protection 
of their constitutional rights, while I feel myself destitute of the power neces- 
sary to realize that expectation. Hence, although obliged to look on and see 
the Constitution of the United States trampled on by a set of men who, I sin- 
cerely believe, are as much influenced by the pleasure of bringing its function- 
aries into contempt, by exposing their impotence, as by any other considera- 
tion whatever, I feel it my duty to call the attention of the President to the 
subject, as one which may not be unworthy of an official remonstrance to 
the Executive of the State. 

In the envelope which encloses this, I have taken the liberty to enclose three 
documents. The first is an act of the Legislature of this State, passed at their 
last session, from which you will' perceive how very far your expectations are 
from being realized, as you expressed them to Mr. Canning in your letter of 
June 17, 1823. The second is a paragraph from the Charleston Mercury of 
23d ultimo, from which it will be seen how pointedly the South Carolina Asso- 
ciation, as it is called, are pressing the execution of that law. And the third 
is an article from the Charleston Courier of the 29th, which contains a report 
of the case of Amos Daley, from which it appears that he was a citizen of 
Rhode Island, and an articled seaman on board of an American vessel. 

The ground of defence taken for him will also appear, and, in the disregard 
of them, the principles acted upon by the people who are pressing these 
measures. 

This man has come off with twelve lashes, because " he could not help him- 
self in returning to this port ;" but, you will see from the law, that this sum- 
mary court possesses the power of inflicting, in the most summary manner, 
twelve thousand lashes, should they think proper. 

I am wholly destitute of the power of arresting those measures. Both the 



J 845.] SENATE— No. 31. 51 

writs of habeas corpus and injunction I am precluded from using, because the 
cases assume the form of State prosecutions ; and, if I could issue them, I 
have nobody to call upon, since the district attorney is himself a member of 
the association ; and they have, further, the countenance of five other officers 
of the United States in their measures. To this fact I attribute much of the 
confidence with which these measures are prosecuted. 

In fact, the law itself was passed under the influence of a memorial from 
the association, who, I am informed, actually had it drawn up here, in pursu- 
ance of their own deliberations, in order to be submitted to the Legislature, 
It is emphatically their law. Tlie only resource of the masters for having 
their men taken from them, or of the men, and the only mode of bringing up 
the subject to the Supreme Court, is by an action for damages. But, without 
friends, without funds, and without time, mariners cannot resort to suits at 
law. 

I must again apologize for troubling you with this communication, and there 
are many private considerations that would have deterred me from making it. 
But I am perfectly sure that I am the only public functionary here by whom 
it would have been made. The society has the countenance and support ot 
some men who cannot openly join it; and, although I am confident there is a 
decided majority against them, yet there are many wealthy and distinguished 
men in it, and some wjiose rank in life ought, in my opinion, to have prevented 
them from taking part with it. 

A copy of Mr. Poinsett's letter to you on this subject has been shown among 
his friends here, and I have perused it. At the same time that I am well con- 
vinced Mr Poinsett believed all that he there urges in excuse of the measure, 
yet I am well persuaded that it is in the power of no one to establish the facts 
there stated. Indeed, I do not hesitate to express the opinion, that the whole 
of the alarm of 1822 was founded in causes that were infinitely exaggerated. 

A few timid and precipitate men managed to disseminate their fears and 
their feelings, and you know that popular panics spread with the expansive 
force of vapor. The rest of the State, I am well persuaded, takes no interest 
in these measures, but rather yields them to the fears of the city representa- 
tion, where their chief operation is felt, than adopts them from an opinion of 
their necessity or utility. 

With very great personal and official consideration, I have the honor to sub- 
scribe myself, sir, your very humble servant, 

WTLLIAM JOHNSON. 
Hon. John Quinct Adams, 

Secretary of State United States. 



52 TREATMENT OF SAMUEL HOAR. [Feb. 



[From the Charleston Courier.] 

LAW REPORT. 

State of South Carolina vs. Daley. 

Mr. Editor, — As this case appears to have excited some degree of interest 
among our fellow-citizens, and as only a very partial account of it has yet been 
published, the following report, drawn up by one present at and concerned in 
the trial, may not be unacceptnble to your readers : 

Amos Daley, a native of Rhode Island, claiming to be a free Indian of the 
Narragansett tribe, was arraigned before a court formed under the act of 1823, 
for having returned into the State, contrary to the provisions of said act, after 
having received official warning of the consequences of such return. 

The court consisted of John H. Mitchell, Q,. U., and Joseph Cole, William 
McDow, and John Huger, Esqrs., freeholders. The trial came on on Tues- 
day, the 22d of June. Mr. Holmes, Solicitor of the South Carolina Associa- 
tion, for the prosecution ; Messrs. Courtenay and McCrady for the prisoner. 

On opening the court, the presiding officer read its proceedings at the last 
meeting, and the testimony of Andrew Bay, Q,. U., a witness on behalf of the 
prosecution, which was as follows : 

That he committed the prisoner, Amos Daley, to jail, having arrived here in 
the schooner Fox, Rose, master, on the 22d day of April last ; that on the 3d 
of May last he was released, and, on his description and marks, age, &c., be- 
ing duly recorded, witness warned the prisoner never to return here again, and 
warned, also, Captain Rose of the consequences which would ensue should 
he be brought into this State ; that the prisoner did return to Charleston, (not- 
withstanding the warning aforesaid,) in the same vessel, commanded by the 
same captain, and witness again had the prisoner arrested and committed on 
the 16th of the present month of June, agreeably to the directions of the act 
of December, 1823. 

The court then entered into the examination of witnesses on the part of the 
prisoner. Three witnesses were called, viz : Perry Rose, master of the schoon- 
er Fox ; James Gilbert, mate ; and Mr. R. B. Lawton. 

Captain Rose was first sworn, and testified : That he well knew the prison- 
er's mother to be a Narragansett Indian, with straight black hair; also knew 
his father,* husband to the woman, his mother ; that he, also, was a Narragan- 
sett Indian, with straight black hair ; that his father was a freeholder, owning 
a farm, and that the prisoner was entitled to all the rights and privileges of 
citizenship in Rhode Island ; that the prisoner was of Warwick ; that these 
Indians trace their descent through the women. 

The mate, James Gilbert, was next sworn. He had seen the woman called 
the mother of the prisoner, and she was an Indian squaw ; he had also seen 

* Counsel for the prisoner thought he said reputed father. 



1845.] SENATE— No. 31. 53 

the man called his father; he, too, was an Indian. Both father and mother 
have straight hair. Witness had no doubt that the prisoner was a free Indian. 
He had known the prisoner since the time of the last war; that it was custom- 
ary to call Indians colored men. 

Mr. Lawton, being then sworn, said : That he was brought up in Rhode 
Island, and lived there until he was 15 years old. He knew the Indians of the 
Narragansett tribe very well, and the features of the prisoner were those of 
the tribe he claimed to belong to. On his cross-examination, he stated that 
the Narragansetts, like all other Indians, traced their descent always through 
the women ; that the hair of the prisoner was not like the generality of Indi- 
ans, but that he had seen genuine squaws of that tribe, who Avere old, with 
very curly^hair; he thought, however, the hair of the prisoner rather against 
him ; that negroes are not very plenty among the Narragansetts ; tiiat it was 
not uncommon to call Indians men of color. 

Messrs. Turnbull and Hiigar were now called, on the part of the prosecution. 

Mr. Turnbull, being sworn, said : That Captain Rose (thinking erroneously 
that he had something to do with the prosecution) had complained to him of the 
hard fate of the prisoner ; that the captain told him he knew the prisoner's 
mother, and she was an Indian, but that he did not know his father; that he 
(witness) had seen Indians of various tribes ; the complexion was not the test 
of genuine blood, but the long straight hair was the characteristic universally 
relied on. The prisoner was not darker than many Indians he had seen. He 
never was among the Narragansett Indians. 

Next was sworn Mr. A. linger, who testified: That he was present with 
Mr. Turnbull when he conversed with the captain. The captain then said he 
knew the prisoner's mother very well ; she was brought up in his family, and 
was an Indian; but, on being asked whether he knew the father, he had an- 
swered nearly in these words : " That he knew nothing at all about the father." 
He, too, (witness,) had travelled much among the Indians, and he considered 
the hair, not the complexion, the test of genuine blood. 

Here the examination of witnesses closed. It was conceded that he (Fox) 
had come from a foreign port, and that the captain was not liable, under the 
act, for bringing the prisoner into the State. The sheriff's book was produced. 
The prisoner's hair was woolly. The following is the copy of a certificate in 
possession of tlie prisoner, which was adduced on the trial : 

To whom concerned: 
State of Rhode Island, ss: 

I hereby certify that Amos Daley, a man of color, was born in the town of 
■yVrirwick, in this State, on the 15lh day of September, A. D. 1800, and is the 
son of William Daley, by Susannah, his wife, as appears of record. 

JOHN REYNOLDS, Town Clerk. 
North Kingston, December 27, 1823. 



LIBRARY OF CONGRESS 



014 418 412 9 # 

54 TREATMENT OF SAMUEL HOAR. [Feb. '45.] 

Messrs. Courtenay and McCrady, for the prisoner, Contended that the evi- 
dence adduced was conclusive as to the prisoner's national character, and 
brought him within the exception of the act, and at least sufficient to throw 
the onus prohandi on the prosecution, and bound the court. The former gen*- 
tleman then endeavored to show that, even if the prisoner were within the let- 
ter, he was clearly without the equity of the act. As it was no offence in the 
captain to bring him in, he was bound in bonds so to do, and the prisoner could 
not prevent it. And further argued, that the act itself Avas unconstitutional 
and void, under the 2d section of the 4th article of the Constitution of the 
United States, " that the citizens of each State shall be entitled to all privileges 
and immunities of citizens in the several States," the prisoner being a citizen 
of Rhode Island. The latter denied the constitutionality of the law, also, but 
relied on the 8th section of the 1st article of the Constitution of the United 
States : " Congress shall have power to regulate commerce with foreign na- 
tions, and among the several States, and with the Indian tribes ;" the act being 
an interference with navigation, which, in the Case of Gibbons vs. Ogden, had 
been decided to be an essential part of commerce, and beyond the control of 
the States. Further : tha,t the act of 1823 clashed with the commercial regu- 
lations of the United States. 

Mr. Holmes, in reply, denied that sufficient evidence had been adduced on 
the part of the prisoner to throw the " oniw" on the prosecution ; and that the 
prisoner was obliged to prove himself within the exception of the act ; con- 
tended that the captain's evidence was worthless, as he had contradicted him- 
self ; and that the prisoner and captain both came within the equity of the act, 
botli having been warned, but the captain happened to escape the letter ; that 
Mr. Courtenay's construction of the Constitution had been refuted in the Mis- 
souri question by our ablest statesmen ; that the part of the Constitution and 
the case relied on by Mr. McCrady were wholly inapplicable to the case before 
the court ; seemed to doubt the principles in Gibbons vs. Ogden, and thought 
we should await the judgment of the Supreme Court in our own case before 
tve yielded. 

The court, after consideration, adjudged the prisoner guilty ; but, in Con- 
sideration of its appearing that he had not returned voluntarily, only sentenced 
him to receive twelve lashes on his bare back the same afternoon, at 5 o'clock, 
iin the work-house. 



